This led to blood feuds, but blood feuds were not an institution of ancient Arab tribal law, they stood outside the law and came under the purview of the law only when they were mitigated by the payment of blood-money, and at this moment the profane character of ancient Arabian law asserted itself again. There was no organized political authority in pre-Islamic Arab society, and also no organized judicial system. Because one of the essential qualifications of an arbitrator was that he should possess supernatural powers, arbitrators were most frequently chosen from among soothsayers.
The decision of the arbitrator was obviously not an enforceable judgment, but a statement of what the customary law was, or ought to be; the function of the arbitrator merged into that of a lawmaker, an authoritative expounder of the normative legal custom or sunna. Transposed into an Islamic context, this concept of sunna was to become one of the most important agents, if not the most important, in the formation of Islamic law, and the 'ulama', the authoritative expounders of the law, became not in theory but in fact the lawmakers of Islam.
Already in Mecca, Muhammad had had occasion to protest against being regarded as merely another soothsayer by his pagan countrymen, and this brought about, in the early period of Medina, the rejection of arbitration as practised by the pagan Arabs.
But when Muhammad was called upon to decide disputes in his own community, he continued to act as an arbitrator, and the Qur'an, in a roughly contemporaneous passage, prescribed the appointment of an arbitrator each from the families of husband and wife in the case of marital disputes. In a single verse only, which again is roughly contemporaneous with the preceding passage, the ancient Arab term for arbitration appears side by side with, and is in fact superseded by, a new Islamic one for a judicial decision: ' But no, by thy Lord, they will not really believe until they make thee an arbitrator of what is in dispute between them and and within themselves no dislike of that which thou decidest, and submit with full submission' Sura 4.
Mohammed and his wife Aisha freeing the daughter of a tribal chief. From the Siyer-i Nebi. This is the first indication of the emergence of a new, Islamic, concept of the administration of justice. Numerous passages in the Qur'an show that this ideal demand was slow to be fulfilled, but Muhammad's position as a prophet, backed in the later stages of his career in Medina by a considerable political and military power, gave him a much greater authority than could be claimed by an arbitrator; he became a 'Prophet-Lawgiver'.
But he wielded his almost absolute power not within but without the existing legal system; his authority was not legal but, for the believers, religious, and, for the lukewarm, political. He was essentially a townsman, and the bitterest tirades in the Qur'an are directed against the bedouin.
Muh ammad, as a prophet, had little reason to change the existing customary law. His aim was not to establish a new legal order, but to teach men what to do in order to achieve their salvation. This is why Islamic law is a system of duties, of ritual, legal, and moral obligations, all of which are sanctioned by the authority of the same religious command.
Thus the Qur'an commands to arbitrate with justice, to give true evidence, to fulfil one's contracts, and, especially, to return a trust or deposit to its owner. As regards the law of family, which is fairly exhaustively treated in the Qur'an, the main emphasis is laid on how one should act towards women and children, orphans and relatives, dependants and slaves. In the field of penal law, it is easy to understand that the Qur'an laid down sanctions for transgressions, but again they are essentially moral and only incidentally penal, so much so that the Qur'an prohibited wine-drinking but did not enact any penalty, and the penalty was determined only at a later stage of Ishmic law.
The reasons for Qur'anic legislation on all these matters were, in the firs tplace, the desire to improve the position of women, of orphans and of the weak in general, to restrict the laxity of sexual morals and to strengthen the marriage tie, to restrict private vengeance and retaliation and to eliminate blood feuds altogether; the prohibition of gambling, of drinking wine and of taking interest are directly aimed at ancient Arabian standards of behaviour.
The encouragement of polygamy by the Qur'an is a case in point. A similar need seems to have called for extensive modifications of the ancient law of inheritance, the broad outlines of which were, however, preserved; here, too, the underlying tendency of the Qur'anic legislation was to favour the underprivileged; it started with enunciating ethical principles which the testators ought to follow, and even in its final stage, when fixed shares in the inheritance were allotted to persons previously excluded from succession, the element of moral exhortation had not disappeared.
This feature of Qur'anic legislation was preserved by Islamic law, and the purely legal attitude, which attaches legal consequences to relevant acts, is often superseded by the tendency to impose ethical standards on the believer. It was during this period that nascent Islamic society created its own legal institutions. The ancient Arab system of arbitration, and Arab customary law in general, continued under the first successors of Muhammad, the caliphs of Medina.
In their function as supreme rulers and administrators, the early caliphs acted to a great extent as the lawgivers of the Islamic community; during the whole of this first century the administrative and legislative functions of the Islamic government cannot be separated.
But the object of this administrative legislation was not to modify the existing customary law beyond what the Qur'an had done; it was to organize the newly conquered territories for the benefit of the Arabs, and to assure the viability of the enormously expanded Islamic state. This particular decision did not become part of Islamic law, but other enactments of the caliphs of Medina gained official recognition, not as decislons of the caliphs, but because they could be subsumed under oneor the other of the official sources of Islamic law which later theory came to recognize.
The introduction of stoning to death as a punishment for unchastity under certain conditions is one such enactment. In the theory of Islamic law, its authority derives from alleged commands of the Prophet; there also exists an alleged verse of the Qur'an to this effect which, however, does not form part of the official text and must be considered spurious.
Traditions reporting alleged acts and sayings of the Prophet came into use as proof-texts in law not earlier than the end of the first century of Islam, and the spurious verse of the Qur'an represents an earlier effort to establish the validity of the penal enactment in question. That the need of this kind of validation was felt at all, shows how exceptional a phenomenon the legislation of Muhammad had been in the eyes of his contemporaries.
In fact, those two groups took over Islamic law from the 'orthodox' or Sunni community as it was being developed there, making only such essentially superficial modifications as were required by their particular political and dogmatic tenets. In one respect, however, the exclusive, and therefore ' sectarian ', character of the two secessionist movements influenced not so much the positive contents as the emphasis and presentation of their doctrines of religious law; the law of the Shi'a is dominated by the concept of taqiyya, 'dissimulation' a practice which, it is true, was forced upon them by the persecutions which they had to suffer , and by the distinction between esoteric and exoteric doctrines in some of their schools of thought; and that of the Kharijites is dominated by the complementary concepts of walaya, 'solidarity', and bara'a, 'exclusion', 'excommunication'.
Whatever was customary was right and proper, whatever their forefathers had done deserved to be imitated, and in the idea of precedent or sunna the whole conservatism of Arabs found expression. This idea presented a formidable obstacle to every innovation, including Islam itself.
But once Islam had prevailed, the old conservatism reasserted itself within the new community, and the idea of sunna became one of the central concepts of Islamic law. In this connexion, there arose the concept of the 'sunna of the Prophet', not yet identified with any set of positive rules, but providing a doctrinal link between the sunna of Abu Bakr and 'Umar' and the Qur'an.
This is far from having been the case. On the contrary, the period of the caliphs of Medina was rather in the nature of a turbulent interval between the first years of Islam under Muh ammad and the Arab kingdom of the Umayyads.
Not even the rulings of the Qur'an were applied without restriction. It can be shown from the development of Islamic legal doctrines that any but the most perfunctory attention given to the Qur'anic norms, and any but the most elementary conclusions drawn from them, belong almost invariably to a secondary and therefore later stage.
In several cases the early doctrine of Islamic law is in direct conflict with the clear and explicit wording of the Qur'an. Sura 5. Sura 2. Islamic law, however, emptied the Qur'anic command of all binding force, denied validity to written documents, and insisted on the evidence of eye-witnesses,in the Qur'anic passage play only a subsidiary part.
It is, of course, true that many rules of Islamic law, particularly in the law of family and in the law of inheritance, not to mention worship and ritual, were, in the nature of things, based on the Qur'an and, we must assume, on the example of Muhammad from the very beginning.
But even here we notice as far as we are able to draw conclusions on this early period from the somewhat later doctrines of Islamic law a regression, in so far as pagan and tribal Arab ideas and attitudes succeeded in overriding the intention, if not the wording, of the Qur'anic legislation.
This went parallel to, and was indeed caused by, the exacerbation of tribal attitudes in the turbulence created by the Arab wars of conquest and their success. The Qur'an, in a particular situation, had encouraged polygamy, and this, from being an exception, now became one of the essential features of the Islamic law of marriage.
It led to a definite deterioration in the position of married women in society, compared with that which they had enjoyed in pre-Islamic Arabia, and this was only emphasized by the fact that many perfectly respectable sexual relationships of pre-Islamic Arabia had been outlawed by Islam. As against tribal pride and exclusiveness, the Qur'an had emphasized the fraternity rather than the equality of all Muslims, nevertheless, social discrimination and Arab pride immediately reasserted themselves in Islam.
Non-Arab converts to Islam, whatever their previous social standing, were regarded as second-class citizens mawali during the first hundred and fifty years of Islam, and all schools of law had to recognize degrees of social rank which did not amount to impediments to marriage but nevertheless, in certain cases, enabled the interested party to demand the dissolution of the marriage by the qadi.
The Qur'an had taken concubinage for granted, but in the main passage concerning it Sura 4. Also, the Qur'anic rules concerning repudiation, which had been aimed at safeguarding the interests of the wife, lost much of their value by the way in which they were applied in practice.
Early Islamic practice, influenced no doubt by the insecurity which prevailed in the recently founded garrison-cities with their mixed population, extended the seclusion and the veiling of women far beyond what had been envisaged in the Qur'an, but in doing this it merely applied the clearly formulated intention of the Qur'an to new conditions. Taking these modifications into account, the pre-Islamic structure of the family survived into Islamic law. As had been the case in the time of Muhammad, law as such fell outside the sphere of religion; if no religious or moral objections were involved, the technical aspects of law were a matter of indifference to the Muslims.
This accounts for the widespread adoption, or rather survival, of certain legal and administrative institutions and practices of the conquered territories, such as the treatment of the tolerated religions which was closely modelled on the treatment of the Jews in the Byzantine empire, methods of taxation, the institution ofemphyteusis, and so forth.
The principle of the retention of pre-Islamic legal practices under Islam was sometimes openly acknowledged, e.
Here the intermediaries were the cultured converts to Islam. During the first two centuries of the Hijra, these converts belonged mainly to the higher social classes, they were the only ones to whom admission to Islamic society, even as second-class citizens, promised considerable advantages, and they were the people who or whose fathers had enjoyed a liberal education, that is to say, an education in Hellenistic rhetoric, which was the normal one in the countries of the Near East which the Arabs had conquered.
This education invariably led to some acquaintance with the rudiments of law. The educated converts brought their familiar ideas with them into their new religion. In fact, the concepts and maxims in question were of that general kind which would be familiar not only to lawyers but to all educated persons.
The Umayyads and their governors were responsible for developing a number of the essential features of Islamic worship and ritual. Their main concern, it is true, was not with religion and religious law, but with political administration, and here they represented the centralizing and increasingly bureaucratic tendency of an orderly adrninistration as against bedouin individualism and the anarchy of the Arab way of life.
Both Islamic religious ideals and Umayyad administration co-operated in creating a new framework for Arab Muslim society. In many respects Umayyad rule represents the consummation, after the turbulent interval of the caliphate of Medina, of tendencies which were inherent in the nature of the community of Muslims under Muhammad.
It was the period of incubation of Islamic civilization and, within it, of the religious law of Islam. We therefore find evidence of Umayyad regulations or administrative law mainly in the helds of the law of war and of fiscal law.
All this covered essentially the same ground as the administrative legislation of the caliphs of Medina, but the social background was sensibly different. The Umayyads did not interfere with the working of retaliation as it had been regulated by the Qur'an, but they tried to prevent the recurrence of Arab tribal feuds and assumed the accountancy for payments of blood-money, which were effected in connexion with the payment of subventions.
On the other hand, they supervised the application of the purely Islamic penalties, not always in strict conformity with the rules laid down in the Qur'an. The offlce of qadi was created in and for the new Islamic society which came into being, under the new conditions resulting from the Arab conquest, in the urban centres of the Arab kingdom.
For this new society, the arbitration of pre-Islamic Arabia and of the earliest period of Islam was no longer adequate, and the Arab arbitrator was superseded by the Islamic qadi.
It was only natural for the qadi to take over the seat and wand of the arbitrator, but, in contrast with the latter, the qadi was a delegate of the governor.
The governor, within the limits set for him by the caliph, had full authority over his province, administrative, legislative, and judicial, without any conscious distinction of functions; and he could, and in fact regularly did, delegate his judicial authority to his 'legal secretary', the qadi.
The governor retained, however, the power of reserving for his own decision any lawsuit he wished, and, of course, of dismissing his qadi at will.
The contemporary Christian author, John of Damascus, refers to these governors and their delegates, the qadis, as the lawgivers of Islam. By their decisions, the earliest Islamic qadis, did indeed lay the basic foundations of what was to become Islamic law.
But as a practical matter, only the presence of specific divine law obliging, prohibiting, commending, or discouraging an act is sufficient to require adherence. So the jurists did not attempt to regulate every conceivable human action but effectively specialized in those teachings of divine law that were directly, or indirectly, connected to public life, such as the rules for the observance of public rituals for example, daily prayers, the Ramadan fast, and the annual pilgrimage to Mecca.
They effectively ignored other aspects of ritual law, neglecting to legislate how to cultivate such inward psychological virtues as reverence, piety, and contentment. Focused almost exclusively on ensuring well-ordered public observance, jurists left thicker ethical judgments to others.
Their own judgments as set out in lawbooks were more narrowly legal in a Western sense. Their language is largely limited to the valid, invalid, void, voidable, binding, and revocable, from the perspective of rules potentially enforceable by the legal system.
Civil society was held separate from religious law, and institutions were developed to incorporate the two, including a judge of Islamic law called a qadi. Though jurists might review whether civil laws were repugnant to divine law—examining if a law required conduct condemned as sinful—they generally did not work against them.
Religious and civil life were intertwined but not collapsed into one. The civil and religious institutions were robust enough for local leaders to imitate them in their own territories for many years to come. T oward the end of the thirteenth century, there emerged a new Islamic empire, one which would ultimately spell the end of this system. While they did not impose Hanafi doctrines everywhere they went, the Hanafi school did come to be the official law of the Empire, and leading Hanafis became tightly integrated into the ruling infrastructure of the state.
But by the early nineteenth century, Ottoman rulers came to appreciate the rising strength of Europe, recognizing it as an existential threat to their existence. For Ottoman reformers, the great advantage European states had relative to them was the centralization of power in the hands of rulers, and so they believed that by adopting such European legislation, the Ottoman state would be able to implement its policies more effectively, successfully making the economic and social reforms needed to put the empire on an equal footing with a rapidly industrializing Europe.
As part of these reforms, the state attempted to apply a universal code of Islamic law for the first time in Muslim history. Drawing primarily from the Hanafi school, the Ottomans produced the first universal Islamic civil code, called the Majallah. And the most lasting effect of the Ottoman reforms would turn out to be sounding the death knell for the Sunni system of four decentralized legal schools. State-led reforms created a universal code by adopting legal reasoning that was, from the perspective of traditional adherents, ad hoc, piecemeal, and in many cases simply cut and pasted from different, otherwise incompatible legal doctrines.
Competition came not only from other branches of the state but also from a broad range of religious movements in civil society, some challenging the pace of reforms as too timid and others rejecting them as illegitimate. One of the most prominent, influential, and long-lasting of these popular religious movements was the Muslim Brotherhood, which was founded by Hasan al-Banna, an Egyptian schoolteacher, after the fall of the Ottomans.
The Muslim Brothers called for a fusion of personal and communal religious renewal with political reform and renaissance—a combination characteristic of Islamist political movements that arose in the twentieth century. The Brothers encouraged Muslims to return directly to the revealed sources of Islam, accusing the clerical class of traditional jurists of having divided Muslims along partisan lines based on historical doctrines that were, they believed, irrelevant to modern Muslims and unintelligible to all but the initiated.
What was needed instead was the moral, spiritual, and political awakening of individual Muslims through a reintroduction of fundamental Islamic values. If someone lost the sight of an eye in an attack, he could retaliate by putting a red-hot needle into the eye of his attacker who had been found guilty by the law. But a rule of exactitude required that a retaliator must give the same amount of damage he received. If, even by accident, he injured the person too much, he had broken the law and was subject to punishment.
The rule of exactitude discouraged retaliation. In a third category of less serious offenses such as gambling and bribery, the judge used his discretion in deciding on a penalty.
Punishments would often require the criminal to pay a reparation to the victim, receive a certain number of lashes, or be locked up. The case then went on much like a private lawsuit. No government prosecutor participated although certain officials brought some cases to court. The classic Sharia provided for due process of law. This included notice of the claim made by the injured person, the right to remain silent, and a presumption of innocence in a fair and public trial before an impartial judge.
There were no juries. Both parties in the case had the right to have a lawyer present, but the individual bringing the claim and the defendant usually presented their own cases. At trial, the judge questioned the defendant about the claim made against him. If the defendant denied the claim, the judge then asked the accuser, who had the burden of proof, to present his evidence.
Evidence almost always took the form of the direct testimony of two male witnesses of good character four in adultery cases. Circumstantial evidence and documents were usually inadmissible. Female witnesses were not allowed except in cases where they held special knowledge, such as childbirth.
In such cases, two female witnesses were needed for every male witness. After the accuser finished with his witnesses, the defendant could present his own. If the accuser could not produce witnesses, he could demand that the defendant take an oath before Allah that he was innocent.
If the defendant swore he was innocent, the judge dismissed the case. If he refused to take the oath, the accuser won. The defendant could also confess to a crime, but this could only be done orally in open court. Since , more than anti-Shariah bills have been introduced in 43 states in the United States. These bills don't seek to ban Shariah but instead prohibit the application of any foreign law, legal code or legal system that doesn't grant the same rights and privileges as those in that state's or the U.
During , 14 states introduced some kind of anti-Shariah law bill, with Texas and Arkansas enacting the legislation, according to the Southern Poverty Law Center. In June , the self-described right-wing national security group ACT for America, designated a hate group by the Southern Poverty Law Center, organized a series of marches around the U.
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