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Cambridge Histories Online The New Cambridge History of Islam Edited by Robert Irwin Book DOI: Online ISBN: 9781139056144 Hardback ISBN: 9780521838245 Paperback ISBN: 9781107457003 Chapter 4 - Islamic law: history and transformation pp. 142-183 Chapter DOI: Cambridge University Press 4 Islamic law: history and transformation wael b. hallaq Introduction If we must refer to the sharı¯qa as ‘Islamic law’, then we must do so with considerable caution. The latter expression bears a connotation that combines modern notions of law with a particular brand of modern politics, both of which were largely – if not entirely – absent from the original landscape of the sharı¯qa we are considering here. Throughout the last three or four centuries European modernity has produced legal systems and legal doctrines that are almost exclusively the preserve of the equally modern nation-state. Intrinsic to its behaviour, the modern state is systemically and systematically geared towards the transformation and homogenisation of both the social order and the national citizen, features that have a direct bearing on law. To accomplish these goals the state engages in systemic surveillance, discipline and punishment. Its educational and cultural institutions, among others, are designed to manufacture the citizen who is respectful of law, submissive to notions of order and discipline, industrious and economically productive. Without the law and its tools of surveillance and punishment, no state apparatus can exist. Ergo the centrality, in the definition and concept of the state, of the element of violence, and of the state’s exclusive right to threaten its use. Now, this vision of the law perforce permeates our notions of what it, as a species, represents. Yet one would immediately misrepresent both the modus vivendi and modus operandi of the sharı¯qa should such modern assumptions be allowed to partake in its definition. The misrepresentation may further be aggravated by the fundamental modern separation between law and morality, which the sharı¯qa ‘lacked’ and which has for long been deemed one of its shortcomings.1 To this important point I shall return in due course. 1 On the modern splits into fact/value and moral/legal in the context of sharı¯qa see Wael Hallaq, ‘Groundwork of the moral law: A new look at the Qurpān and the genesis of sharı¯qa’, Islamic Law and Society, 17, 1 (forthcoming, 2010), esp. section II. 142 Cambridge Histories Online © Cambridge University Press, 2011 Downloaded from Cambridge Histories Online by IP on Wed Apr 01 15:33:14 BST 2015. Cambridge Histories Online © Cambridge University Press, 2015 Islamic law The differences, noted above, between the law of the modern state and the sharı¯qa suggest that, prior to the dawn of modernity, the sharı¯qa coexisted with a body politic far weaker than the modern state, lacking the characteristics of the latter, including corporate identity, a public welfare apparatus, a universal administrative and bureaucratic control, surveillance and law making. With the encroachments of modernity on the Muslim world during the nineteenth and twentieth centuries, the sharı¯qa was first gradually absorbed and later largely destroyed by the modern Muslim nation-states, leaving remnants of it (mainly in the sphere of personal status) to be remoulded in a fashion that served those states’ imperatives, mainly in the cause of social engineering.2 The new states and societies that have now emerged in the Muslim world lack nearly all the fundamental attributes that characterised the weaker premodern states and traditional societies in which the sharı¯qa had operated and, indeed, taken as a premise for its functioning. Not only such aspects of it as family law, but even criminal law, have been dramatically refashioned and appropriated by the modern state for political gain, particularly for garnering the much-coveted mantle of political legitimacy. This appropriation was concomitant with a structural transformation in the meaning of sharı¯qa, now regarded as a body of texts and as an uncompromising deontology almost entirely severed from the anthropological and sociological backgrounds that sustained its functioning throughout a millennium before the rise of modernity. This is to say that one of the chief effects of this transformation was the subjection of the sharı¯qa to a process of ‘entexting’, a process that began in British India and continued unrelentingly under the nationalist regimes after independence.3 Stripped of its traditional anthropological, sociological and institutional underpinnings (which defined how traditional substantive law was modulated and applied in social contexts, and in turn how these contexts allowed this law to assume the existence of a moral community), the sharı¯qa has become an entexted and codified law, existing within modern-state legal structures and without the traditional checks and balances that the moral community had afforded. Yet another modern transformation, intimated above, occurred through the introduction of a line of separation between law and morality.4 Since the sharı¯qa was seen as having failed to distinguish conceptually between the two 2 For a detailed analysis see Wael B. Hallaq, Sharia: Theory, practice, transformations (Cambridge, 2009), chap. 16. 3 On the processes and significance of ‘entexting’ the sharı¯qa see Wael B. Hallaq, ‘What is Sharia?’, Yearbook of Islamic and Middle Eastern Law, 2005–2006, vol. XII (Leiden, 2007). 4 Hallaq, ‘Groundwork of the moral law’, section II. 143 Cambridge Histories Online © Cambridge University Press, 2011 Downloaded from Cambridge Histories Online by IP on Wed Apr 01 15:33:14 BST 2015. Cambridge Histories Online © Cambridge University Press, 2015 The New Cambridge History of Islam and to separate them in practice, the legislatures of the modern Muslim nation-states as well as individual legal thinkers and reform-minded Muslims followed colonialist policies and orientalist understanding in enhancing the segregation of the two spheres. Among the consequences of this segregation has been the rise of the modern distinction between qibādāt and muqāmalāt, the former referring to worship and ritual belonging to the ‘domain of God’ and the latter referring to the ‘properly’ legal transactions between and among social individuals. Known and acknowledged by jurists for centuries, the distinction now acquired an entirely new meaning deriving from the European separation between the private and public spheres. Belief in God became a private matter, having almost nothing to do with the state and its positive law, both of which regulate the social sphere. For the first time in history, the sharı¯qa in many modern Muslim countries was made to conform to the maxim ‘give to God what is to God, and to Caesar what is to Caesar’. The modern segregation of the ‘ritual’ from the ‘legal’ has been a function of overlooking the moral force of the law, a failure to appreciate both the legal ramifications of qibādāt rituals and the moral ramifications of those ‘strictly legal’ provisions of muqāmalāt. While this fluid interchangeability between the moral and the legal could never obtain in modern law, it was the cornerstone of sharı¯qa and its functioning in the social order; which is to say that the failure, if not deliberate, was necessary and inevitable in a process in which the modern state, by its very nature, had to assume the role of an amoral lawgiver. But the traditional technical separation between qibādāt and muqāmalāt had an entirely different function, one that in fact underscored the importance of the moral for that which we now regard as strictly legal. Traditionally, fiqh books (containing both substantive and procedural law) begin their exposition with five chapters or ‘books’ (kutub; sing. kitāb), reflecting, in strict order, four out of the five pillars of Islam,5 the arkān, on which fundamental religious beliefs rested. These books discuss (a) ritual purification (t.ahāra), which was preparatory and a prerequisite for (b) performance of prayer (s.alāt); (c) payment of alms-tax (zakāt); (d) performance of pilgrimage (h.ajj); and (e) fasting (s.awm). The priority of these ‘ritualistic’ books in the overall corpus of the law is reflected in their universal placement at the beginning, a long-standing tradition that no jurist appears to have violated. Furthermore, they often 5 The fifth, which is in fact first in order, is the shahāda (testimony) or double shahāda, namely, that ‘there is no god but God and that Muh.ammad is the messenger of God’. This double shahāda did not receive coverage in legal works, as its implications were strictly theological. For more on these implications see Wael B. Hallaq, ‘Fashioning the moral subject: Sharia’s technologies of the self’, unpublished MS. 144 Cambridge Histories Online © Cambridge University Press, 2011 Downloaded from Cambridge Histories Online by IP on Wed Apr 01 15:33:14 BST 2015. Cambridge Histories Online © Cambridge University Press, 2015 Islamic law occupy as much as one-quarter to one-third of the entire body of these treatises.6 Their placement was not merely of symbolic importance; it had a function that made this ritualistic grouping a logical and functional antecedent. The function was subliminal, programmatic and deeply psychological,7 fashioning the moral subject and laying the foundations for achieving willing obedience to the law that followed – that is, the regulations affecting, among much else, persons and property. The legal treatises, depending on the school and the jurist, continue their exposition with either contractual and pecuniary subjects (such as sales, agency, pledge, partnerships, rent etc.) or family law (marriage, various forms of marital dissolution, custody, maintenance, inheritance etc.). Following these rules one usually finds sections dealing with offences against life and limb, some regulated by the Qurpān (h.udūd), and others by principles of retaliation or monetary compensation (qis.ās.). The last sections of legal works usually treat adjudication and rules of evidence and procedure, and often include an exposition of jihād (law of war and peace), although in some schools or juristic writings this section appears earlier in the treatise. It bears repeating that, whatever the arrangement of books within the treatises, the materials dedicated to the elaboration of so-called rituals always come first, having universal precedence over all else. If sharı¯qa is divine guidance, then this guidance had to be as much imbued with morality as legality, which is to say that all capable Muslim individuals (mukallafs) were required to do what is right (as opposed to what is strictly legal). Accordingly, the sharı¯qa came to organise human acts into various categories, ranging from the moral to the legal, without however making such distinctions in either a conscious or typological manner. In fact, there are no words in Arabic, the lingua franca of the law, for the contrastive modern notions of moral/legal. Thus, conforming to any of five norms, all acts are regarded as sharqı¯ (i.e. subject to the regulation of the sharı¯qa and therefore pronounced as law, in its jural-cum-moral sense). The norm or category of the forbidden (h.arām) entails punishment upon commission of an act deemed prohibited, while that of the obligatory (wājib) demands punishment upon omission of an act whose performance is decreed legally necessary. Breach of contract or committing adultery, not to mention uprooting trees or hunting within the Meccan sanctuary, are just some of the infractions falling within the 6 However, the Mālikı̄s add to these five a chapter on jihād, discussed by the other schools usually towards the end of their books. For the Mālikı̄s see Jamāl al-Dı̄n ibn qUmar ibn alH.ājib, Jāmiq al-ummahāt, ed. Abū Abd al-Rah.mān al-Akhd.arı̄ (Damascus and Beirut, 1421/ 2000), pp. 243ff. 7 On the function of these books see Hallaq, ‘Fashioning the moral subject’. 145 Cambridge Histories Online © Cambridge University Press, 2011 Downloaded from Cambridge Histories Online by IP on Wed Apr 01 15:33:14 BST 2015. Cambridge Histories Online © Cambridge University Press, 2015 The New Cambridge History of Islam h.arām category, while prayer and payment of pecuniary debts are instances of the wājib. Both categories require punishment upon non-compliance, while the diametrical, ungraded opposition of punishable/non-punishable deprives the individual of any freedom of action or choice. The distinctly punitive outlook embedded in these two categories initially led several modern scholars to the notion, now a century old, that the sharı¯qa qualifies and acts as ‘law’ only when rules belonging to these two categories are involved (‘law’ here is, of course, essentially assumed to be a positive system of rules). The three remaining categories – the recommended (mandūb), the neutral (mubāh.) and the disapproved (makrūh) – do not, in the view of this scholarship, constitute law proper, as they do not possess any truly coercive or punitive content. In other words they are said to be unenforceable, since commission of the disapproved and non-commission of the recommended do not entail punishment in any real sense. Instead, their omission and commission, respectively, entail a reward, assumed to await the individual in the hereafter. Similarly, the category of the neutral prescribes neither permission nor prohibition, leaving the choice entirely up to the preferences of the individual. The neutral, it must be stressed, is a strictly legal category rather than an area in which the sharı¯qa failed, or did not care, to regulate human acts. Put differently, categorising an act as neutral is both a deliberate choice and a conscious commitment not to assign particular values to particular acts. The punitive character of the obligatory and forbidden and the absence of this quality from the other three categories conflate any distinction between the moral and strictly legal, for the distinction was never perceived as integral to the law.8 Indeed, the categories of the recommended and the disapproved do entail punitive consequences, where applicable, though these are not of the earthly kind. That they are entirely theological and eschatological does not consign them a place outside the law. Divine punishment is horrendous and eternally painful, to an extent and quality that cannot even be imagined by the human mind. But for the petty, and not so petty, wrongdoers, God is forgiving and merciful. Not only can many bad deeds be forgiven, but good deeds are rewarded manifold and have, in their overall weight, an offsetting effect against bad deeds. The reward is thus exponential. Doing good and performing beneficial deeds increases one’s credit, meticulously noted in a believer’s transcendental ledger. Thus, to do good is by definition to be ‘near God’ (qurba) in this life and in the hereafter, to be loved and in receipt of His grace and bounty. The pronouncement ‘there is no god but God’ ultimately 8 Ibid. 146 Cambridge Histories Online © Cambridge University Press, 2011 Downloaded from Cambridge Histories Online by IP on Wed Apr 01 15:33:14 BST 2015. Cambridge Histories Online © Cambridge University Press, 2015 Islamic law epitomises, but does not mask, the totality of these relationships with the Creator, in their threat and promise.9 That sharı¯qa norms engendered willing obedience, where the inner sources of the self willingly generate actions that are at once moral and legal, is perhaps the most striking difference between what we call Islamic law and the law of the modern state. It is with these caveats in mind that we now turn to discuss the sharı¯qa’s history and some of the salient ways of its functioning. Formation By the end of the sixth century CE Mecca and its northern neighbour, Yathrib, had known a long history of settlement and were largely a part of the cultural continuum that had dominated the Near East since the time of the Sumerians. True, the two cities were not direct participants in the imperial cultures that prevailed elsewhere in the Near East, but they were tied to them in more ways than one. Prior to the Arab expansion in the name of Islam, Arabian society had developed the same types of institutions and forms of culture that were established in the societies to the south and north, a development that would later facilitate the Arab conquest of this region. Through intensive contacts with the Lakhmids and Ghassānids and with their Arab predecessors who dominated the Fertile Crescent for a century or more before the rise of Islam, the Arabs of the Peninsula maintained forms of culture that were their own, but which represented a regional variation on the cultures of the north. The Bedouin themselves participated in these cultural forms, but the sedentary and agricultural settlements of the H . ijāz were even more dynamic participants in the commercial and religious activities of the Near East. Through trade, missionary activities and connections with northern tribes (and hence constant shifting of demographic boundaries) the inhabitants of the H . ijāz knew Syria and Mesopotamia quite as well as the inhabitants of the latter knew the H . ijāz. When the new Muslim state began its expansion to the north, north-west and north-east it did not enter these territories empty-handed, desperately in search of new cultural forms or an identity. Rather, the conquering Arabs, led by a sophisticated leadership hailing from commercial and sedentary Medina and Mecca, were very much products of the same culture that dominated what was to become their subject territories.10 9 Ibid. 10 For a detailed discussion of the place of Arabia in Near Eastern culture see Wael B. Hallaq, The origins and evolution of Islamic law (Cambridge, 2005), pp. 8–28. 147 Cambridge Histories Online © Cambridge University Press, 2011 Downloaded from Cambridge Histories Online by IP on Wed Apr 01 15:33:14 BST 2015. Cambridge Histories Online © Cambridge University Press, 2015 The New Cambridge History of Islam The earliest military campaigns and conquests, although not systematic, were geared towards major centres. The Muslim armies consisted primarily of tribal nomads and semi-nomads who, rather than take up residence in the newly won cities of the Fertile Crescent, Egypt and Iran, for the most part inhabited garrison towns (ams.ār) as a separate class of conquerors. Kūfa and Bas.ra in southern Iraq and Fust.āt. in Egypt constituted the chief settlements at the early stage of the conquests. It did not escape the Muslim political leaders of Medina, the capital, or their military representatives in the garrison towns, that their warriors needed to learn the principles of the new order, its new ethic and world-view. Tribal Bedouins to the core, most soldiers found alien the military organisation to which they were subjected, and by which their freedom was constrained. Even more alien to them must have been the new ideas of Islam, its mode of opera ...
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