INSTITUTIONS AND CIVILIZATION OF THE EASTERN CALIPHATE (cont.)

Muslim Law

It has been explained that, under the ‘Abbasids, four orthodox,, sects were established, and that these sects differed among themselves principally with regard to jurisprudence. The law of Islam is one its most original creations, and can only be compared in history with the development of Roman law. The laws laid down by Mohammed in the Koran might suffice for the Arabs as long as they were confined within the bounds of their peninsula. When their empire was extended beyond these limits, it was inevitable that this first code should become insufficient for their wants. As early as the time of the first four Caliphs it was necessary, in giving judgment on the new cases which presented themselves, to have recourse to analogy, and to draw inspiration from decisions given by Mohammed, but not recorded in the Koran. The first fountains, therefore, of law were, besides the sacred book, the traditions of Mohammed, or Hadith, the collective body of which constitutes the Sunna, or custom. These traditions were for a long time preserved only in the memory of the companions of Mohammed, and of those to whom they had been orally communicated. But at the beginning of the second century of the Flight the need was left of fixing tradition in writing; and it was at Medina that the first collection of them was made. It was due to the jurisconsult Malik b. Anas. He rejected from his collection with the greatest care all traditions which appeared doubtful, and only preserved about seventeen hundred, which he arranged in the order of their subjects. To this collection he gave the name of Mowatta, or Beaten Path. After him came the celebrated Bokhari, the compiller of the Sahih, in which he brought together about seven thousand traditions, carefully chosen. The Sahih continued to be the standard work on the subject of tradition.

The traditions did not always supply the means of deciding difficult causes. The first four Caliphs were often obliged to have resource to their own judgment in the administration of justice. Their decisions (‘Athar) were also collected at Medina, and helped to swell the store of juridical matter.

In ‘Irak another school of law was formed, which is distinguished from that of Medina by a greater degree of independence. While the lawyers of Medina held strictly to the Koran, the traditions of the Prophet, and the ‘Athar, those of ‘Irak admitted, in addition to these, the deductive or analogical method (Kiyas), according to which it was lawful to create precedents, provided there was no departure from the spirit of the sacred book, from the traditions of the Prophet, or from the corresponding decisions of the first four Caliphs. Ibn Abi Laila, who filled the office of judge in ‘Irak, under the caliphate of Mansur, was one of the first to apply this system. His renown, however, was eclipsed by that of his contemporary Abu Hanifa, who worked out a complete system of jurisprudence, with which his name has continued to be connected (Hanifite law). Fifty years after the death of Abu Hanifa, Shafi’I a pupil of Malik, appeared at Baghdad, and founded in his turn an intermediate system, in which he endeavored to hold an equal balance between the purely traditional and the deductive methods. The fourth system reputed orthodox is that of Ibn Hanbal, a pupil of Shafi’i. Ibn Hanbal strove above all things to bring back religious observances to their primitive purity. His doctrine was a kind of Puritanism. As may be supposed, each of these systems has been subsequently developed and commended on in a multitude of works, even the names of which it is impossible to enumerate. In order, however, to give some idea of what a Moslem treatise on jurisprudence is, we shall point out the principal subjects contained in it. It treats successively –1. Of Purification (ablutions commanded by the law, purification of women, circumcision, etc); 2. Of Prayer as commanded by the law; 3. Of Funerals; 4. Of Tithe and Salmsgiving; 5. Of the legal Fast; 6. Of the Pilgrimage to Mecca; 7. of Commercial and other transactiuons; 8. Of Inheritance; 9. Of Marriage and Divorce; 10. Of the Faith; 11. Of Crimes and Misdemeanours; 12. Of Justice; 13. Of the Imamate or spiritual power, and of the Caliphate or temporal power. It is thus a complete code, religious, civil, penal, and governmental, that Moslem treatises on jurisprudence set before us; a code which embraces and foresees all the circumstances both of public and private life.





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