Islamic Law and Society: Sources, Principles, and History
Social Structure in Al-Andalus
Jass: People of Arab ancestry, relatives to a remote prince who belonged to the Marwanid branch of the Umayyad, called Hashimies or “people of Qurays” to indicate their nobility of blood. Privileges included the right to receive pensions (rizq), access to the private treasure of the sovereign, real estate income, and tax exemption. They were exempt from working in public jobs whose administration depended on a trustee or receiver (naqib). Large families (buyutat) that inherited from senior officials of the State were important in Córdoba.
Middle Class and Urban Masses (Ayan): Men of law, wealthy merchants, and landowners. They gradually moved to the city, requested a particular status and certain franchises. They were not highly organized.
Amma: Artisans, Berber laborers, freedmen, Mozarabs, and Jews. They were the base of the population of big cities since they bore the brunt of taxes and the pressure of institutions. Considered a rude rabble. The sovereign, fearing riots, dictated fiscal measures to forgive back taxes. The rural proletariat was mainly formed by Mozarabs. Some people benefited from the allocation of lands after the conquest without drawbacks. The holy war’s main objective was the spoils of war, so property and conquered land were divided. The property, even the captives, were divided: 1/4 for troops, 1/5 for Allah (jums). The conquered land was for the Muslim community. Former occupants remained with the precarious title of having to cultivate it and pay an annual rent to the Treasury (jararch). Some willingly submitted territories gave rise to possessing them by paying regularly (jizbaya) plus personal capitation (jizya).
Slavery: Resulted from military incursions by Saracens against Christians at summer (aceifas). The captive-Peninsular slaves were captured in expeditions against the Christian kingdoms, especially during Almanzor. The ones purchased by Jews became Mozarabs and even emancipated from their owner. Within the servant class, there were the mawali: upon whom the right of patronage (wala’) was exercised. Slaves could be freed by their owner in life or death (testament). Once the slave was freed, he was still attached to his owner or his heirs by a family relationship (duties and the right to oral protection). Wala’ was transmitted from father to son.
Main Legal Sources of Muslim Law
Sharia: The Quran, sunna, igma, and qiyas are the main sources of Islamic Law and the roots of Islam according to al-Safi’i. Other sources help to understand the development of the law in al-Andalus (‘urf, ra’y). The most important feature of Islamic Law is sacredness, but other features are:
- Confessionalism: Resulting from the union of fiqh and Sharia, justifying the interconnection between religion, politics, ethics, and law in the Islamic world.
- Personality: Resulting from confessionalism and justifies the irrelevance of the territorial nature of fiqh.
- Ethics: A constant in fiqh, also important in economy and politics.
- Extra-statutory character: Irrelevant as the caliph is deprived of the legislature.
- Imperativism: Resulting from the interconnection of the fiqh and Sharia. The standard siari is a limit established by Allah to the original freedom derived from human action. Its compliance is a civil and religious obligation.
- Immutability: Partial and theoretical if taking into consideration the activity of fuqaha because of the Islamic social reality.
The Quran
The Quran is the sacred book of Islam, where the Prophet Muhammad received God’s word in Arabic through the archangel Gabriel. For Muslims, the Quran is the literal word of God. Sunnis believe it is an eternal attribute of God, while Shi’i and Ibadi communities deny divine attributes, emphasizing strict monotheism. The Quran was revealed to Muhammad in fragments, which he memorized and later dictated to his disciples. After his death, his companions compiled the texts, and the official final version was completed by the third caliph, Uthman. The Quran, consisting of 114 chapters (suras) divided into verses (ayah), is the first book in Arabic organized by decreasing length. The longer suras include revelations from different times with unrelated arguments, while the shorter suras are from the early period of Muhammad’s mission. The Quran addresses religious, moral, and legal matters, with Medinan suras focusing on legal issues and controversies with Jews and Christians. Only 500 out of 6200 verses contain legal rules, forming the core of Islamic law. Due to the fragmented revelation, some verses are contradictory, requiring knowledge of their chronological order for proper interpretation.
The Sunna
The sunna is the tradition and stories (hadith) about the Prophet Muhammad regarding what he said or did, considered the true commentary of the Quran. Thus, it would be unacceptable that a judge dictates a sentence referring only to the Quran and not the sunna. The sunna is the second source of knowledge of the fiqh and refers to the conduct according to a saying, fact, or silence of Muhammad, acting not as a prophet but a man before his life circumstances. The hadith consists of two parts:
- Matn: Content in the strict sense.
- Isnad: Transmission chain formed by people who pass the message (rawi).
As many people are involved in the transmission, its veracity is questioned. There are some requirements to accept them according to:
- The more perfect the isnad is, the more recent the hadith is.
- In ancient times, reliable hadiths are attributed to Muhammad or those next to the Prophet.
- Most of the legal hadiths are from the first half of the first century of the Hijra.
- There are no authentic core transmitters from Muhammad’s time and no core of false hadith related to the next generations.
- The hadiths on Muhammad were developed between 150-250 of the Hijra.
- Legal hadiths alluding to Muhammad are not the original base of Muslim law but a subsequent innovation.
Classification criteria are:
- Based on the accuracy and authority, they can be:
- Accurate (sahik): Perfect tradition with no missing link in the chain transmitter.
- Beautiful (hassan): Not so perfect but with high narrative value.
- Weak (da’if): An exemplary purpose but with no normative value.
- Based on the number of transmitters:
- Widely transmitted: Many involved.
- Remarkable: Multiple transmitters.
- Unique: One transmitter passed it on.
Hadiths are provided by transmitters in alphabetical order of the first word of the story.
Consensus (Igma)
The fiqh and ethics establish an agreement on the truth that the believer is not allowed to discuss. The agreement of the Community is actually between doctors qualified as representatives of the Community on an argument related to the Sharia. For the Sunnis and Ibadis, the igma is the third source after the Quran and sunna but sometimes appears over them. Legal writers consider it a school and norm. Islam has never had educational institutions and religious hierarchy, i.e. councils, but the infallibility of igma fills the loopholes. No school of law gives an opinion about igma. Shiites do not support igma.
Analogy (Qiyas)
The fourth and last source. Qiyas is the comparison of one thing and another. In legal terms, it is the comparison between a new act, still not qualified, and an act already judged or analogous. Not everyone agrees on its legitimacy. The Hanbali’ School reduces its use since the same result can be achieved with deeper traditions. This legitimacy problem causes problems for Islam.
Custom (‘Urf)
‘Urf is the most disputed source in Islamic Law since no explicit text in the Quran and sunna says that ‘urf can be a proof in Islamic Law. But the Prophet and his companions implicitly allow its usage. In early times, Islam allowed a custom, i.e. slavery, to be practiced but with conditions. Before Islam, slaves were not treated as humans. Since the Islam, the custom of slavery continued but encouraged freeing them, but Muhammad put certain rules: feed the slave, clothe him, not burden him with work. ‘Urf is divided into:
- Approved customs: Observed by the people with no indication in the Sharia that contravenes its principles. The approved customs are divided into:
- Verbal (qawli): General agreement on the meaning of words used for purposes other than their literal meaning. Understood based on their customary meanings, not their literal.
- Actual (fi’li): Recurrent practices accepted by the people. Divided into:
- General ‘urf: Prevalent everywhere, the people still agree on it despite the passage of time.
- Special ‘urf: Prevalent in a particular locality, profession, etc. It is not a requirement to be accepted everywhere.
- Disapproved customs: Practiced by people, but there is evidence that it contradicts the principles of Sharia.
The conditions to accept ‘urf as a source of law are:
- Custom must be common and recurrent. It must be a regular practice among the masses, not only a few people in a large community.
- In contracts and commercial transactions: custom has to exist even at the conclusion of the transaction.
- Custom cannot violate a clear stipulation of an agreement; contractual agreement over custom. Only resort to custom in the absence of a contractual agreement.
- Custom cannot go against the principles (nass) of Islamic Law.
Other Legal Sources
Legal arguments (istihsan) and subsidiary assumptions (istislah) are sources subject to controversy regarding their admissibility. The rate of the fact that human actions are predetermined by God, according to Islam, should be determined by an interpretive effort (igtihad). The exegesis of religious law is reserved for free people, and the interpretation of the doctors has a decisive role in who and when to apply this source of law. Quran’s interpretation (tafsir) is based on several sources since sunna indicates the times when the Prophet received the revelation of each part of the Quran. This interpretation has been developed by grammar, logic, or allegory. Amal is praxis and forensic case law, issues at any time and anywhere in Islam. In the Maghreb, this has been marked by relevant literature based on formulae collection, abstract legal opinions (fatawa), rules, and answers about important facts in the forensic case. ‘Amal’s literal meaning is the practice of the qadi, showing combining the customs and practice of legal authority. The ‘amal is dual: jurisprudence is a source to justify the case’s solution, but there are guidelines to stop the judge from exceeding in the administration of justice.
The Notion of Islamic Community (Umma)
In a preliminary phase of the Umma, the two parts of al-Aqaba emerged: “tribute to women”, a contract between Muhammad and tribes like Madina-261, and “tribute of war”. In Madina, the converts to Islam had to shed blood for Muhammad. On September 24th, 622, after Hijra to Madina, Muhammad created a social and political organization whose tradition is preserved in the Charter of Madina (safiha) that has two categories: Muslims, Meccans, emigrants, Madinians or Confederate, pagan Arabs, and Madina’s Jews, organized in 6 tribes. The Community Charter is between the Islamic Umma and the pre-Islamic tribal Confederate (hilf). Jewish tribes were expelled from Medina in 627, and the Umma became an organization of only believers of the same scriptures. Full believers of the Umma, supporters of a sacred scripture and idolaters, were against the infidels.
Umma is related to the caliph/imam, Muhammad’s successor in politics. After the establishment period, only one person had the political and spiritual function. After the unification, the first Abbasids period, sovereignty took a unitary role. The reunification of Islam based on politics and religion was attempted even wanting to rebuild the Caliphate. Current Quran: codex of moral religion at the service of God and the good of the community. Civil laws are left to the discretion of men.
The Islamic Territory (Dar al-Islam)
Humanity is divided into believers and unbelievers. Unbelievers can be people of the Book that believe in a revealed scripture, Hebrews, Christians, Zoroastrians, Hindus, and who believe in idols, pagan polytheists. According to Islamic jurists, humanity is also divided into the territory of Islam and the territory of war, considered that it belongs to Islam, so it must be reconquered. Andalusia was considered a territory of war. The limits of the territory have been relevant for validating the law based on Sharia.
Concept of Sovereignty
Changed over time. Muhammad, while in Medina, had political authority within the Umma, fully recognized by his followers who wanted to end the tribal particularism and accepted Islam and God’s authority. This forms the pre-Islamic institution and the bay’a, tribute in Islam, like homage rendered to the king as a simple act of etiquette. The ritual of tribute differs in the Umayyad and Abbasid periods. For Umayyads, it is a series of heirs within the same family that does not require full consensus; inheritance was a primary election in the same bayt, academy, where its clientele chose a walil’ahd, heir.
For the Abbasids, bay’a is the recognition of the future emir’s throne and his power to judge common people and social groups, both fidels. It is personal and lasts all his mandate. But, it did not have the effects of general law among Andalusians.
In this early period, 632-661, the bay’a was also a tribute to the believers’ representatives and a promise of obedience to the Prince of Believers. The bay’a, despite the opposition in the Umayyad period but very stressed in the Abbasid one, is an essential recognition of authority. The central power weakened, and the territory dismembered. There was a lot of autonomy and devolution of power received from the caliph, Islam sovereignty. Around the 3rd-4th century of Hijra: the caliph lost its unitary power. The caliph did not have to be despotic but to exercise his authority for God’s and Umma’s interests; the caliph had to defend Islam. The Islamic legal doctrine was never “legibus solutus” since there has always been obedience to the Sharia. Muslim jurists, igma, have always agreed on the need of the Umma of only one successor of Muhammad; this means only one caliph or imam, applied to non-Sunni Muslims. Appointing the caliph is binding, and it depends on the community, not on each believer.
Concept of Caliphate
Muhammad died, a setback for appointing a successor since there was no right of representation to regulate it. The caliph was not a prophet but a community leader. After Muhammad, “revelations” were over. Universalized teachings of Muhammad justified the leadership of Abu Bakr who created an army that expanded the borders in a short time, weakening the Byzantine and Sassanid Empires. This spread Islam to Syria, Basra, Iraq, and Egypt. This expansion was criticized by some nobles and ancient lineage of Madina because of how Uthman ibn Affan governed, killed in a rebellion in Madina, which caused a civil war. The first way to achieve the Caliphate is by election of the Community or those with the ability “to elect and bequeath”, representatives that can identify in an individual the requirements of being a caliph, stipulating the Imamate contract and paying tribute. The second way: the predecessor appoints the successor, with precaution to avoid a dynasty. The later doctrine of al-Mawardi recognized a third way: power held based on the principle that tyranny is preferable to anarchy.
Requirements for being a caliph: legal capacity, Muslim and free, able to reason, pubescent, integrity of body and mind, blameless conduct, male, member of the Qurais lineage. The imamate contract obliges the Caliph to: enforce religious law according to tradition; avoid reprehensible innovations; protect the honor, life, and property of Muslims; provide administration of justice and military defense, lead holy war against infidels. Caliph’s policy must be in accordance with the Sharia. The imamate obliges the Umma to comply and assist the Caliph so he won’t act contrary to Islam. In certain disobedient acts, the community holds true authority to resolve the Imamate. The caliph’s powers may be delegated by wilaya; this delegation can be general or special. This delegation can be in favor of a General ‘Amir or emir of holy war who assumed being qadi, judges, but chosen among law experts. The qadi’s delegation was limited by subject and territory; they can also appoint other delegates.
Siyasa, ‘Urf, and Acculturation
The siyasa is made up of the sovereign’s will (amr) and the custom (‘urf), both particular and local. The acculturation is a result of two facts. The first one is that Morocco was not an Ottoman province although it was under colonialism; this also happened in Algeria in 1830 due to French colonialism. The second fact is that Egypt was a part of the Empire in 1914, enjoying a special system, 1841-1882. In the acculturation process, there are three codification models: Ottoman, Egyptian, and Maghreb.