Sunday, April 29, 2012


 “Difference of opinion within my community is a sign of the bounty of Allah.” This alleged dictum of the Prophet Muhammad serves to explain and justify to Muslim jurisprudence, the phenomenon of the widespread divergence in the doctrines of the jurists qualified to expound Shari’a law. In a sense the tension between unity and diversity in Islamic legal doctrine is a natural and inevitable consequence of the basic tension I spoke of in the previous lecture between the two constituent elements of Islamic law: for divine revelation represents the fixed and constant factor, and human reason the variable and fluctuating factor, in Islamic jurisprudence. There is also involved in the present antinomy the distinction between the ideal and the actual state of affairs. Muslim jurisprudence, at least in its classical form, had no doubt that. Shari’a law existed as a single comprehensive and uniform code of behavior prescribed by Allah for all his creatures on earth. But in its endeavor to perceive and comprehend this Ideal law the human Intellect was fallible and defident, and variation in the results of juristic speculation as to the contents of the Shari’a had perforce to be accepted as a matter of fact. In much the same way Islamic political theory rested upon the ideal of a universal Muslim community or ‘iimina, united under a single ruler or Caliph, while in historical reality Islam has been divided into a variety of politically independent states. Arising as it does out of the search to discover the ideal law of the Shari’a, the phenomenon of unity and diversity in legal doctrine, goes to the very heart of Muslim jurisprudence. There is an old Arab proverb to express this. The person who does not understand divergence in doctrine,” it runs, “has not caught the true scent of jurisprudence.” (Man lä yaraf al-ikhtiläf lam yashumma rã’ihata ‘l-fiqh).
Divergence of legal doctrine, as far as Sunni Islam is concerned, is crystalized in the existence of four different schools or versions of Sharia law. Basically these schools were formed through the personal allegiance of groups of jurists to a founder-scholar from whom they derived their names of Hanafis, Mãlikis, Shaf’is and Hanbalis; but each school had its own peculiar circumstances of origin. The two oldest schools are the Hanbalis and Mãlikis, and both came into existence as the representatives of the legal tradition of a particular geographical locality — the former being the disciples of Abü Hanifa (d. 767) in the Iraqi center of Kufa, the latter the followers of Mãlik b. Anas (d. 796) in the Arabian center of Medina. This early period of Islamic jurisprudence, as I observed in the previous lecture, was characterized by an uninhibited use of personal reasoning (ra’y) to regulate cases not specifically governed by a text of the Qur’an or a decision of the Prophet, so that Mãliki and Hanafi doctrines, naturally enough, diverged insofar as they rested upon and reflected the particular social traditions and environment of the two different localities. In contrast to the local character of these two early schools, the later schools of the Shafi’is and Hanbalis were both born out of the jurisprudential controversy which arose during the ninth century on the subject of the sources of the religious law. The disciples of Shafi’i, who first formulated the systematic theory of law being derived from the Qur’ãn, the sunna and reasoning by analogy, formed, after his death in 820, the Shafi’i school. Some thirty years later a group of scholars under the leadership of Abmad b. Hanbal (d. 855) formed the Hanbali school. They stood foursquare behind the principle of the paramount authority of the Prophet’s sunna, which, they maintained, was being undermined by the forms of juristic reasoning recognized in the other schools.
By the end of the ninth century, however, the four schools had all come to subscribe to a basically common theory of the sources of law. And with their resulting recognition, of a common purpose, initial rivalries gradually gave way to a state of peaceful coexistence. The original distinctions of geographical locality or juristic principle faded into obscurity, and the schools mutually regarded their several bodies of doctrine as equally legitimate attempts to define Allah’s law, equally authoritative versions of the Shari’a.
What made this state of harmony possible was, essentially, the doctrine of consensus or ijma’. This doctrine of consensus represents the paramount criterion of legal authority for Islam and shores up the whole structure of legal theory. It is the principle that the unanimous agreement of the qualified jurists on a given point has a binding and absolute authority. The whole process of Muslim jurisprudence, from the definition of the sources of law to the derivation of substantive rules there from, was a speculative effort of the human intellect. And it was the ijma’, and the ijma’ alone, which gave the necessary authority to this process. For, in the ultimate analysis, it was the ijma’ which guaranteed the authenticity of the Qura’n and the sunna as the material of divine revelation, and the validity of the method of reasoning by analogy to elaborate and extend the principles embodied in the divine revelation. But the conclusion that an individual jurist might reach, in terms of a substantive doctrine derived from the recognized sources, was in the nature of a conjecture. Whether he was deciding upon the precise meaning of a Qur’ãnic text or resolving a novel problem, his conclusion could only amount to a tentative, or probable, statement of the divine law. But where the rule concerned was the subject of a general consensus, then its status was transformed into that of a certain and incontrovertible statement of the divine law; for the consensus was infallible. Muslim jurisprudence expresses the distinction in terms of knowledge (‘ilm) and conjecture (zann). Certain “knowledge” of the rules of the divine law could only come about where there was unanimity of opinion; the rest was “conjecture,” which necessarily involved the recognition of variant opinions. Thus the ijmã’ provides an umbrella authority for the, variant doctrines of the different schools of law. Where the Muslim jurists could not agree, they agreed to differ. It is a candidly pluralistic philosophy of law, which recognizes that no individua1 opinion can claim, as against other variants, a unique authority. A phrase that occurs passim in Muslim legal literature epitomizes this philosophy. Discussion of a controversial problem and an assessment of the various possibilities often end with the words: “but Allah alone really knows.”
Legal theory thus endeavored to assert the fundamental unity of law in Islam by regarding the four schools as equally authoritative and blending them together as manifestations of the same single essence. But in legal practice the boundaries between the schools were firmly drawn. Each school came to have, in geographical terms, a settled sphere of influence inasmuch as the courts of a given area consistently applied its doctrines. Thus, broadly speaking, Hanafi law has traditionally been applied in that area of the Middle East now covered by Turkey, Syria, Lebanon, Iraq, Jordan, Egypt, and the Sudan, and in the Indian subcontinent. Mãliki law has governed the Muslim populations in North, West, and Central Africa. Shäfi’i law has prevailed in East Africa, the southern part of the Arabian Peninsula and in Southeast Asia. Hanbali law is today the law of the land in the kingdom of Saudi Arabia. Moreover, under its doctrine of the mutual orthodoxy of the schools, legal theory tended to emphasize their common law and minimize their divergence. It created an impression that the schools spoke with one voice on all fundamentals and only differed on minor issues. But in fact the division between the schools in matters of substantive law goes deeper than this. Each school represents a cohesive system of law which has its own distinctly individual characteristics in terms of social values and juristic principles. This may become apparent from a consideration of the extent to which the doctrines of the schools coincide or diverge in certain aspects of matrimonial law.
Upon the essential nature of the institution of marriage all schools are  in agreement. Marriage is a contract, concluded simply by the mutual agreement of the parties, under which the husband obtains the right of sexual union in consideration of the dower that he pays to the wife. All schools, too, recognize the institution of marriage-guardianship under which the father or other close male relative of a girl has a measure of control over the marriage of his ward. But in regard to the important question of the extent of the guardian’s powers, which is allied to the question of the legal capacity of the female ward, there is a clear distinction between the doctrine of the Sunni majority on the one hand and the Hanafi school on the other.
Hanafi law puts male and female basically on the same footing with respect to their legal capacity to conclude transactions. Legal majority comes with the fact of physical puberty, when it is presumed, unless there is evidence to the contrary that the person concerned has attained that degree of sound and mature judgment which enables him or her properly to manage his or her own affairs. Such a person of sound judgment is termed, in the language of the law, räshid. Physical puberty is a matter to be established by appropriate evidence, but the law presumes that it cannot occur before tile age of nine in the case of girls and twelve in the ease of boys, and that it must have occurred by the age of fifteen for both sexes. Accordingly, at the outside limit of the age of fifteen, a girl is emancipated from her guardian’s control, as being now räshid. During her minority her guardian’s control over her person and property includes his power to conclude a marriage contract on her behalf, but when she becomes adult she is perfectly free, inter alia, to conclude her own marriage contract without the intervention of the guardian.
According to the other Sunni schools, however, no woman can conclude her own marriage contract. Her proper guardian must conclude the contract on her behalf; otherwise the purported marriage is a total nullity. Furthermore, even an adult girl may be validly contracted in her first marriage by her father, regardless of her own wishes in the matter. Only when she has been married before is her consent to her marriage necessary. This majority view, therefore, rests upon the principle that a female’s person and property are subject to her guardian’s control until she marries. Only then does she acquire a capacity to deal with her own property, and only after this will her consent to any other future marriage become relevant. In some mysterious way the quality of being räshid, of having that mature judgment which is the point of emancipation, is acquired by a female through the sexual experience of her marriage.
But whether her consent to her marriage is required or not, the contract itself must always be concluded by her guardian. This point of Islamic law came in for discussion in the rather improbable setting of a libel action in the English High Court, in the case of Saleh v. Odhams Press, 1963. The Muslim plaintiff complained that he had been held up to ridicule and contempt by an article that appeared in the defendant’s newspaper under the heading “Child wife bought for £800,” which went on to describe the plaintiff’s marriage, concluded under the Islamic law of the MäIiki school with a Moroccan girl in Casablanca, in terms of a purchase — the sum of £800 apparently being arrived at by adding the cost of the plaintiffs air fare from England to Morocco to the amount of the dower he had paid in consideration of marriage. The defendants pleaded that they were justified in describing the marriage as a sale because the negotiations for marriage had been concluded between the plaintiff and the girl’s uncle and because a sum of money was involved. But this plea failed. It was held that the defendants had grossly misrepresented the nature of the proceedings involved in a Muslim marriage. The marriage guardian, in this case the bride’s uncle, was in no sense acting as a vendor. It was not he, but the bride herself, who received the dower, and he bad concluded the contract, as the bride’s representative and acting upon her wishes, because Mäliki law required him to do so. Accordingly the defendants were held liable in damages for libel.
The difference between the schools on the subject of marriage guardianship and woman’s legal capacity in general is formally attributed, by classical jurisprudence, to divergent views on the authority and interpretation of certain alleged precedents of the Prophet. But in fact the difference has its roots in the circumstances of origin of the two earliest schools of law, the Mãlikis and the Hanafis. Maliki law developed in the traditionally Arab center of Medina. The social standards it accepted and reflected were naturally those of the patriarchal Arabian tribe in which, inter alia, the male members of the tribe controlled the marriages of its women. Hanafi law, on the other hand, grew up in the Iraqi locality of Kufa, where Persian influence predominated (Abü Hanifa himself was of Persian extraction) and where society, in contrast to that of Medina, was almost cosmopolitan. In this setting, where the traditional standards of Arabian tribal life had not the same relevance, it was natural that woman should have a relatively higher status and, in particular, the right to contract her own marriage.
 From this example of a divergence in law which arose from different social environments, I turn to a sphere of the law where the schools are divided upon a matter of juristic principle. The subject involved is the marital relationship. The basis of the marital relationship, according to all the schools, might be summarized as the wife’s duty to obey her husband and her right, in consideration of this, to maintenance and support from him. Nor is there any dispute among the schools on such fundamentals as the institution of polygamy — the husband’s right to marry additional wives up to the permissible maximum of four concurrently. But, granted that the normal legal incidents of the marital relationship are the same for all the schools, the question arises: How far are the spouses free to regulate their own marital relationship, in terms of their rights and duties, by agreeing upon special terms or conditions in the marriage contract?
It was common ground that the spouses could not agree to something contrary to the essence of marriage. For example, it is of the essence of marriage that it is, in the initial intention of the parties at any rate, a lifelong union. Any agreement, therefore, which purported to set a time limit to the marriage would be a complete nullity. It was equally common ground that an agreement between the parties which served to buttress or reinforce the normal incidents of marriage was a valid and enforceable agreement. Such, for example, is the case of an agreement which specifies the amount of dower payable or fixes the sum of maintenance which the husband is to provide. But controversy arose between the schools as to terms and conditions which fell between these two extremes, which neither reinforced the normal incidents of marriage nor were contrary to the essence of marriage, but which attempted to modify or contradict the normal incidents of marriage. Suppose, for example, that upon the insistence of his bride a husband agrees in the marriage contract that he will not take a second wife during the continuance of their marriage. Is this a valid and enforceable agreement or is it not?
The basic juristic issue involved here is the principle known in Arabic legal terminology as ibäha, which may be translated as “tolerance.” It refers to the “tolerance” of the lawgiver, Allah, who allows his creatures on earth freedom of action and behavior outside the area covered by his specific commands or prohibitions. The question, therefore, in the context of our present problem is whether or not the principle of ibäha can apply to allow the spouses freedom to determine that their marriage will be monogamous.
The majority view of the Hanafi, Mãliki, and Sbafi’i schools is that ibäha has no relevance here. The necessary effects of a marriage contract, in terms of the rights and duties of the spouses, are specified by the divine law, binding upon the parties and not susceptible to variation by them at will. Hence an agreement by a husband not to exercise his established right of polygamy is a nullity. Despite the term in the marriage contract he may take a second wife, and the first wife has no legal remedy.
Hanbali law, however, holds that the principle of ibäha does apply to this case. Agreements in general are valid and enforceable provided they are not in themselves specifically forbidden by the law or manifestly contrary to the essence of marriage. The rule of polygamy is permissive, not mandatory. It is not specifically forbidden nor is it contrary to the essence of marriage that a man should have only one wife. Hence the spouses’ agreement in this regard is valid and enforceable. It is not enforceable, however, in the sense that the husband will be prevented from taking a second wife; but if he does, he will be in fundamental breach of his contract, so that the wife will be released from her own obligations thereunder and will obtain a decree of dissolution of her marriage on petition to the court.
The differences between the Sunni schools on the two matters we have just considered can hardly be accounted trivial At the same time the extent of their agreement can best be appreciated when Sunni law as a whole is compared with the law of the minority Muslim sect of the Shia, which today has its center in Iran, though there are also considerable numbers of Shi’i Muslims in India, East Africa, and Iraq. For although Shi’i law rests on the same material sources of the Qura’n and the sunna, it often diverges from Sunni law in a fundamental way. Shi’i law, for example, recognize as valid the institution of temporary marriage, or mut’a, under which the wife agrees to cohabit with the husband for a fixed period of time in return for a fixed remuneration, called the “hire price” (ujra). In Sunni jurisdictions such a temporary union would not only be void at civil law; it might amount to the criminal offence of illegal sexual union, carrying traditionally, a minimum penalty of one hundred lashes and one years imprisonment and a maximum penalty of death by stoning.
But perhaps the most outstanding rift between the two groups lies in their respective schemes of inheritance This was the result of a fundamentally different approach toward the nature of the Qur’ãnic legislation. Sunni jurisprudence regarded the Qur’ãnic rules as reforming the existing customary law in a number of particulars, so that in the absence of any specific modification the customary law was deemed to be still operative. In the contemplation of the Sunnis, where the Qur’an did not expressly reject a customary rule, it tacitly ratified it. The result of this approach was, as I observed in the previous lecture, that the Sunni law of succession gives pride of place to the tribal heirs of the customary law, the male agnate relatives of the deceased. The women to whom the Qur’an gave rights of inheritance for the first time are entitled, in appropriate circumstances, to the fractional portion of the estate which the Qur’ãn allots to them. But where a male agnate relative of the deceased survives, this will be the limit of their entitlement. The male agnate, however distant a relative he might he, will step in and claim the residue of the estate; for the female, however close a relative she might be, does not have the status to exclude him from succession. Hence, if a Sunni Muslim dies intestate, survived by a daughter and a distant male agnatic cousin, the daughter will be restricted to a portion of one-half of her father’s estate, and the cousin will inherit the remaining one-half as residuary heir.
For the Shi’a, however, the Qur’anic legislation was far from being merely a series of piecemeal reforms. They maintained that the Qur’an laid down the basic elements of an entirely novel legal system, including a system of succession. It obliterated completely the preexisting customary law. Any rule of the customary law which was not expressly ratified by the Qur’an was tacitly rejected. And therefore, because the Qur’an nowhere expressly ratifies the preeminent claims of the male agnates, as such, to inheritance, they have no privileged position in the Shi’i scheme of succession. One of the Shi’i leaders is supposed to have expressed this principle in no uncertain terms. ‘As for the male agnates,” be declared, “dust in their teeth.” On this basis Shi’i law marshals all relatives, male and female, agnate and otherwise, into a single comprehensive scheme of priorities based exclusively upon the nearness of their relationship with the deceased. Within this scheme any descendant of the deceased, male or female, has absolute priority over any collateral; so that the daughter of a deceased Shi’i Muslim will totally exclude his brother, and, a fortiori, any more distant male agnate such as a cousin, from succession, and will inherit the whole of her father’s estate.
The Islamic legal system of medieval or classical times, then, was a highly diversified system. There was a clear-cut ideological rift between the majority of the Sunnis and the minority sect of the Shia. And within Sunni Islam the boundary lines between the four schools, in terms of both their substantive doctrine and the geographical areas of their application, were firmly drawn. From late medieval times onward, however, the dividing lines have been progressively relaxed, until today, in the legal practice of the countries of the Near and Middle East, they have almost totally disappeared.
The initial impetus in this process was provided by the work of legal scholars who devoted themselves to a study of the whole phenomenon of diversity of legal doctrine. One of the most notable scholars who broke out from the confines of the doctrine of his own school was the Hanbali jurist Ibn Qudäma. In his magnum opus, entitled the Mughni, Ibn Qudäma scrutinizes the views of the different schools and jurists and compares them with traditional Hanbali doctrine. And although he betrays a natural personal allegiance to the doctrines of the founder of his school, Abmad b. HanbaI, he does not hesitate to assert the relatively superior merit of a variant doctrine when it appears to him to be the juristically sounder opinion. It is from works such as this of Ibn Qudäma, which stimulated the analysis of variant doctrines and an assessment of the grounds upon which they rested, that Islamic law takes on the appearance of a built-in comparative legal system.
Legal scholarship further reduced the tension between the schools by insisting that each individual Muslim was absolutely free to follow the school of his choice and that any Muslim tribunal was bound to apply the Jaw of the school to which the individual litigant belonged. Not only this, but it was generally admitted that an individual had the right to change his school of law on a particular issue. “No one,”wrote Ibn Taymiyya, another Hanbali scholar of an independent turn of mind, “is obliged to follow any particular authority, except the Prophet himself, in everything he is allowed or forbidden to do. Muslims have never ceased to ask the advice of scholars, and to follow this authority on one occasion and that authority on another. If a person follows a particular authority on a specific issue because he thinks that this authority is most beneficial to him in his religion, or because he thinks his argument is the better one, or for any similar reason, this is permissible according to the great majority of Muslim scholars. This was not denied by Abü Hanifa, Mãlik, Shaf’i, Ahmad b. Hanbal or anyone else.”
Although the jurists maintained that such a change of school must rest on the bona fide belief that the doctrine of the alternative school was intrinsically sounder, and could not be grounded purely on personal convenience, this proviso does not seem to have troubled unduly the Muslim courts of India and Singapore. Here, for example, an interesting series of judicial decisions has allowed Shãfi’i girls (Shãfi’i being the traditional school of persuasion in Ceylon and Malaya) to benefit from a rule of Hanafi law on a specific matrimonial, issue. The series began with the Bombay High Court case of Muhammad Ibrahim v. Ghulam Ahmad, 1864. A Shafi’i father petitioned the court to annul the marriage of his daughter on the ground that it had been contracted without his permission or intervention. Shãfi’i law does in fact allow annulment in such cases. But the daughter claimed that she had contracted the marriage as a Hanafi, which school, as I have already observed, grants an adult woman full legal capacity in this regard. The court, on this ground, rejected the petition for annulment and held the marriage to be valid. It is difficult
to say how far this case and its successors go; but it would seem that the decisions were based upon the equitable expedient of allowing a Shãfi’i girl to avail herself of a more convenient rule of the Hanafi school, rather than on the firm principle that the girls concerned had become Hanafis for all purposes.
It is against this background of the growing recognition by jurisprudence and by legal practice, of the variant doctrines of the different schools as equally authoritative alternatives, that the most recent developments in the Muslim countries of the Near and Middle East must be viewed. During the last few decades codification of Islamic family law have appeared in most of these countries, and one of the most striking features of the codes is the extent to which they represent a synthesis of the variant doctrines of the different schools.
The principle underlying the codes is that the political authority has the power, in the interests of uniformity, to choose one rule from among equally authoritative variants and to order the courts of his jurisdiction to apply that rule to the exclusion of all others; and the choice of this rule or that has been made simply on grounds of social desirability, the codes embodying those variants which were deemed most suited to the present standards and circumstances of the community.
One of the most obvious trends in contemporary Middle Eastern society is the emancipation of women, and much of the substance of the codes is directed toward the improvement of their legal status. Thus, in the Mäliki country of Tunisia, girls are no longer subject to the strictures of the Maliki law of marriage guardianship, since the Tunisian Code of Personal Status, 1957, adopts the Hanafi rule that an adult woman has a full legal capacity to conclude her own marriage contract. On the other hand, in the Hanafi country of Syria, wives no longer suffer from the traditional Hanafi doctrine which did not recognize any ground upon which an ill-treated wife might petition the court for divorce; for in 1953, the Syrian Law of Personal Status adopted the more liberal Maliki law that a wife may petition for divorce on such grounds as the husband’s cruelty, desertion, or failure to maintain her. Finally, both Mãliki wives in Tunisia and Hanafi wives in Syria now benefit from the more liberal Hanbali doctrine relating to terms and conditions in marriage contracts which the codes of both these countries have now adopted. Previously, any agreement which the husband may have entered into and which was designed to safeguard the wife’s position—such as an agreement that the husband would not take a second wife, or that the wife should be free to follow a professional career or social activities of her own choosing — could be broken by the husband with impunity. Now, however, in the event of the husband’s breach of such an agreement, the wife will at least have the remedy of judicial dissolution of the marriage.
But what is perhaps the most intriguing instance of this process of selection from variant doctrines is to be found in the Law of Personal Status currently applicable in Iraq. I have noted the fundamental nature of the divergence that separates the Sunnis as a whole from the sect of the Shia on the subject of inheritance. An Iraqi law of 1963 enacted that the basic Shi’i system of succession was henceforth to apply to the estates of all Iraqi nationals.
There were indeed, sound social reasons behind this reform. The Sunni law of inheritance, with its emphasis upon the rights of male agnates, caters for a tribal system of society. But in contemporary Iraq, particularly in urban areas, tribal ties have disintegrated, and the unit of society has become the more immediate family circle of parents and their issue, within which circle the female has an increasingly responsible role. The Shi’i system of inheritance, on the other band, consistently emphasizes the claims of this smaller family circle and gives females an important position within it, particularly in the rule, which I have already mentioned, that a daughter, or indeed any female descendant of the deceased, totally excludes the brothers or more distant male agnate relatives of the deceased from inheritance.
It may be, too, that in the particular context of Iraqi society such a transition from Sunni to Shi’i law was not difficult to accept, since the population of Iraq is approximately half Sunni and half Shi’i. Indeed, it is said that prior to the enactment of the Law of Personal Status, Sunni Muslims who were in the twilight of their years and without male issue often professed conversion to the Shi’i credo simply to prevent the bulk of their estate passing into the hands of some distant male agnate relative, whose very existence was a matter of indifference to them. Even so, the new Iraqi law of succession represents the first occasion on which the principle of selection has so decisively jumped across the traditional chasm between orthodox and sectarian Islam, to impose Shi’i law upon a Sunni population.
Today, then, within the national boundaries of the Muslim countries of the Near and Middle East there is greater unity in the law than there was in times past. Uniformity is, of course, one of the principal goals of codification of the law, and this has been, in large measure, achieved in Islamic family law, since the courts are bound by the terms of the national code and no longer have the power to choose between the variant doctrines of the school as recorded in the traditional authorities. Nor can they any longer apply to particular litigants the law of another school to which they might profess to belong, since the codes apply to all nationals regardless of particular religious allegiance.
From an international standpoint, however, the process has brought about a growing diversity in Islamic law. Under the principle of selection from doctrines of the different schools, the authors of the codes ranged freely over the whole vast corpus of traditional doctrine and chose therefrom those provisions which were deemed most suitable for their national society. A population previously governed by Hanafi law now found itself subject to an amalgam of the law of all the four Sunni schools. Since, however, needs and circumstances vary from country to country, this modem process of applied comparative law has resulted in combinations and permutations of traditional doctrines which differ from country to country. In short, the eclectic principle has been used to adapt the law to the particular temper of a particular Muslim society today. This is a healthy process of social purpose and one which has given a new and a much deeper practical significance to the famous dictum of the Prophet: “Difference of opinion within my community is a sign of the bounty of Allah.”

For related post see: APPROACHES TO SHARIA

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