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Islamic Law - Legal Literature And Institutions, Jurisprudence: The "sources" Of The Law, The Modern Period

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Islam, like Judaism and unlike Christianity, is a nomocracy, a religion of the law as opposed to theology. It is evident from the Koranic text that sacred law is a crucial feature of the covenants that God establishes, through prophets, with the various nations of mankind. Prophets are united by their main directive, to worship God alone, by their moral exhortations, and by accompanying miracles proving that their messages are of divine and not human origin. Some prophets also bring with them a Scripture: the Koran mentions the Scrolls of Abraham, the Torah of Moses, the Psalms of David, and the Gospel of Jesus. Some prophets also bring with them a new sacred law. In the Koran, the term that corresponds to this sacred law is din, now the ordinary term for "religion" in Arabic, and individual fundamental laws are termed hudud Allah ("God's limits"). However, the term for the sacred law that gained general acceptance from early Islamic history on is the shari'a ("the way, or path"), parallel to the Jewish term for the sacred law, halacha (also "the way, or path"). The shari'a is Islamic sacred law taken in toto: the idealized system of all religious obligations God has imposed on believers.

Muslim scholars of the sacred law devote themselves to discovering the rulings of the shari'a, in effect seeking to determine God's intentions concerning the specific obligations of believers on the basis of available evidence. Law as a branch of academic study or as a product of human discourse is termed fiqh (literally, "understanding"). A jurist or specialist in law is termed faqih ("one who understands, is perspicacious.") The goal of the jurist is to determine reliably, given a set of circumstances—including time, place, identity of the legal agent, and so on—the legal status of particular possible acts. There are five main categories for the legal assessment of acts: forbidden (haram; e.g., marrying one's aunt); disfavored but allowed (makruh; e.g., a husband's repudiation of his wife without cause); indifferent (mubah; e.g., eating raisins); recommended but not obligatory (mustahabb; e.g., a man's marrying as soon as he can afford to do so); and obligatory (wajib; e.g., supporting one's elderly parents, fasting during the day in Ramadan). Other legal assessments, such as valid (sahih) and invalid (batil), do not apply to acts, but to contracts of sale or marriage contracts, for example. Islamic law is also a moral system; it is intended to preserve morality and not simply mete out justice. It does so by maintaining a stable social order, whereby the five cardinal values of religion, life, off-spring, property, and rationality are conserved.

By the late eighth and early ninth centuries C.E., from which date the earliest extant compendia of the points of law, such as the Kitab al-umm of Muhammad b. Idris al-Shafi'i (d. 820), Islamic law was already a sophisticated science with a substantial tradition behind it. In such works, the law was organized into chapters in a more or less standard order, falling into three main sections: 'ibadat ("devotions"), including ritual purity, prayer, almsgiving, fasting, the pilgrimage, and related topics; mu'amalat ("transactions, contracts"), including sales, debt, rental, pawning and mortgage, partnership, loans, inheritance, marriage, divorce, slavery, gifts, endowments, etc.; and ahkam ("verdicts"), including payment of indemnity for injuries, criminal punishments, and court procedure. Obviously, the law includes not only topics directly related to religious devotions and rituals but also general topics of family, commercial, and criminal law. Not all legal issues were addressed by the jurists in their theoretical writings, and even some that were rarely enforced by them. For example, Islamic penal law only prescribes punishments for six specific crimes: adultery or fornication, false accusation of adultery or fornication, robbery, drinking intoxicants, and banditry. Other offenses, except injury and murder, which are covered by lex talionis, or the payment of indemnity, are subject to discretionary punishments that may be determined by the ruler or the judges he has appointed. For this reason, large bodies of extra-religious law were created by various dynasties, the most developed example being that of the qanun of the Ottoman Empire, which covered many areas of public, fiscal, administrative, and criminal law. Islamic jurisprudence recognizes that not all areas are covered by the scriptural law, and it is generally held that 'urf, or the custom of a particular locale, may serve as the basis of law as long as it does not contradict other legal principles. Custom has played a particularly important role in commercial arrangements, which varied widely from one area of the Muslim world to another.

As in Rabbinic Judaism, in Islam it was primarily expertise in the law that endowed one with religious authority. Although legislative authority, the right to set the law itself, theoretically belongs to God alone, interpretive or declarative authority belongs to the jurists, on the grounds that their interpretations represent the closest possible assessment of God's will with regard to legal questions. Other groups have claimed religious authority in the course of Islamic history, including theologians, mystics, and charismatic leaders, but the jurists have succeeded in establishing and justifying their authority as a group more than any other ever since the tenth century C.E. Nevertheless, the jurists regularly assumed the existence of an Islamic polity under a Muslim sovereign with absolute political authority. In a historical compromise, the jurists carefully delimited the sphere within which the sovereign could exercise his authority, granting him a great deal of latitude in public law, such as taxation and public safety, while endeavoring to maintain the jurists' own control over private law, including marriage, divorce, sales, and so on. There therefore exists something akin to a split between church and state, but it is between private and public law, and both the jurists and the rulers justify their position on claims to religious authority and divine sanction.

Islamic law differs from the common law in some important respects. In the Islamic judiciary system, there are no lawyers (i.e., advocates for the plaintiff or defendant), nor is there a jury. Trials are conducted by the judge, and the plaintiff and defendant represent themselves. They may call witnesses or produce evidence as needed. The decision is up to the judge alone, though he may consult other jurists, experts, and so on. Attached to the judge's court were one or more notary-witnesses (shahid) and a document clerk. Their function was to serve as character witnesses for the people of their district, draw up and execute legal documents, record the court proceedings, and certify the judge's verdicts and other documents. However, court decisions or judges' verdicts do not have law value; they do not set precedent, as in the common law system. Law value resides in the jurists' theoretical elaboration of the law, found in fatwa s ("consultative legal opinions" or "answers to legal questions"). The fatwa is a responsum to a legal question posed by a lay petitioner (mustafti) to a legal expert or issuer of legal opinions (mufti). The problem may be potential or actual, but the answer is not binding on the petitioner, in contrast with a judge's verdict, which must be carried out. It is this process of legal consultation and response, followed by the open debate of disputed questions among the available authorities, that creates new law. Nor were there traditionally any codes in Islamic law, in contrast with the Napoleonic legal system, and, surprisingly, with Rabbinic law since the sixteenth century, which has treated the Shulchan Aruch by Joseph Karo more or less as a code. All later development of the law is presented in the form of commentaries on that law. Scholarship to date has emphasized that Islamic law is a jurists' law, developed by the jurists themselves without governmental interference. It was therefore relatively uninfluenced by rulers' edicts and decrees. It was, however, shaped by two crucial institutions that have lasted from the tenth and eleventh centuries until the modern period: the madhhab, which one may render variously as "legal school," "jurists' guild," or "tradition of legal study," and the madrasa, or college of law.

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