Law as a Social Force in Islamic Culture and History

J.N.D. Anderson

doi:10.1017/S0041977X00061644

Law as a Social Force in Islamic Culture and History

Published online by Cambridge University Press: 24 December 2009

J.N.D. Anderson

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For centuries the law has held a paramount place in the civilization and structure of the Muslim world, at least in the Islamic ideal. The prestige it has enjoyed may, indeed, be regarded as without parallel in history, for this civilization was uniquely based on religion, and the religion of Islam has always accorded a pre-eminent place to law.

Nor is the reason for this pre-eminence far to seek. In the religion of Islam everything rests on divine revelation, without which man remains in a state of almost unrelieved ignorance. But, in the orthodox view, God has not revealed Himself and His nature, but rather His law.

Type: Articles
Information: Bulletin of the School of Oriental and African Studies , Volume 20 , Issue 1 , February 1957 , pp. 13 - 40

DOI: https://doi.org/10.1017/S0041977X00061644 [Opens in a new window]
Copyright: Copyright © School of Oriental and African Studies 1957

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^{page 13 note 1} These points have been admirably expressed in a recent book by Cragg, Kenneth, The call of the minaret, O.U.P., 1956;Google Scholar cf. especially pp. 47–8, 54–8.

^{page 14 note 1} The path to a watering place: hence the law of God.

^{page 18 note 1} The summary which follows is based, in the main, on the conclusions of Professor J. Schacht. See M. Khadduri and H. J. Liebesny (ed.), Law in the Middle East, 28–84, and J. Schacht, Origins of Muhammadan jurisprudence, passim.

^{page 19 note 1} Again cf. Schacht, Origins, 83; in Law in the Middle East, 35–6, 59, etc.; and in ‘Foreign elements in ancient Islamic law’, Journal of Comparative Legislation and International Law, Third Ser., XXXII, 3–4, 1950,Google Scholar 9–17.

^{page 19 note 2} cf. D. C. Dennet, Conversion and the poll tax in early Islam.

^{page 20 note 1} And the only effect of the elective principle, which was still maintained in theory, seems to have been the prevention of any stable and recognized system of hereditary succession. This only emerged with the Ottoman regime, and then in the somewhat unsatisfactory form of the senior surviving member of the ruling family.

^{page 20 note 2} cf. Coulson, N.J., ‘The State and the individual in Islamic law’, International and Comparative Law Quarterly, Fourth Ser., VI, 1, 1957, 49–60.CrossRef Google Scholar

^{page 20 note 3} As distinct, that is, from the Ṣūfī brotherhoods.

^{page 20 note 4} cf. Coulson, N.J., ‘Doctrine and practice in Islamic law’, BSOAS, XVIII, 2, 1956, 211–26.CrossRef Google Scholar

^{page 21 note 1} On the contrary, the Caliph ‘Umar, when told that a decision he had just given was diametrically contradictory to a previous decision which he had given on the same facts, is reputed to have observed: ‘It is better to return to the right path than to persist in error’.

^{page 21 note 2} i.e. where the risks of trade are shared by the investor, and there is no guaranteed interest.

^{page 21 note 3} cf. Schacht, Law in the Middle East, 59, and works cited there.

^{page 22 note 1} cf. Maqrīzī, II, 219–22.

^{page 22 note 2} cf. J. Schacht, in Law in the Middle East, 78–80, and E. Tyan, Le Notariat et la régime de la preuve par écrit.

^{page 25 note 1} cf. Law in the Middle East, 309.

^{page 25 note 2} cf. Law in the Middle East, 309–11.

^{page 26 note 1} And for this proposition and some Ḥanafī, authority was available.

^{page 27 note 1} This is also true of the Law of the Ḥisbīya Courts, 1949, in regard to legal capacity, representation, and financial guardianship—which fall, in Egypt, within the exclusive competence of these special courts.

^{page 28 note 1} While a draft Law of Inheritance aroused such opposition in 1950 that the proposal was dropped.

^{page 28 note 2} For a detailed discussion of all these reforms in law, see my articles ‘The problem of divorce in the Sharī‘a law of Islam: measures of reform in modern Egypt’, Journal of the Royal Central Asian Society, XXXVII, 2, 1950, 169–85;Google Scholar ‘Recent developments in Sharī‘a law’ (I–IX), in successive numbers of the Muslim World, XL, 4, 1950–XLII, 4, 1952;Google Scholar ‘The Syrian Law of Personal Status’, BSOAS, XV, 1, 1955, 34–49;Google Scholar ‘A draft Code of Personal Law for ‘Irāq’, BSOAS, XV, 1, 1953, 43–60;Google Scholar and ‘The Personal Law of the Druze community’, Die Welt des Islams, N.S., II, 1–2, 1952, 1–9, 83–94.Google Scholar

^{page 28 note 3} See my Islamic law in Africa, 16 ff.

^{page 29 note 1} Even in what would appear so obvious a reform as providing that a formula of divorce pronounced as a jest should be null and void—for here an (alleged) Prophetic tradition to the contrary intervened.

^{page 29 note 2} cf. Syrian Law of Personal Status, section 40 (2).

^{page 30 note 1} This is based on a translation of the phrase allā ta‘ūlū which was suggested by no less an authority than but has not been traditionally followed.

^{page 30 note 2} Section 17.

^{page 30 note 3} i.e. the rule which precludes representation in such circumstances.

^{page 30 note 4} Althóugh the views of early dissidents from this assumption have been quoted, of course, in support of this reform.

^{page 26 note 1} Both of which were provided for by previous legislation; cf., in this context, my article ‘The Sharī‘a and Civil Law (the debt owed by the new Civil Codes of Egypt and Syria to the Sharī‘a)’, Islamic Quarterly, I, 1, 1954, 29–6.Google Scholar

^{page 33 note 1} See my article on ‘Law reform in the Middle East’, International Affairs, XXXII, 1, 1956, 43–51,Google Scholar especially p. 51.

^{page 33 note 2} Or Indonesia—or, indeed, territories such as Malaya and even Northern Nigeria which may soon attain independence.

^{page 33 note 3} Since, that is, such enactments as the Indian Penal Code, 1862, and the Indian Evidence Act, 1872, put an end to the remnants of the general dominance of Islamic law under the Moghuls.

^{page 33 note 4} Together, as a matter of ‘justice, equity and good conscience’, with the law of pre-emption (which is even applied, as a matter of customary law, to those Hindus who have adopted it as such).

^{page 33 note 5} e.g. the Caste Disabilities Removal Act, 1850; the Age of Consent Act, 1891; and the Child Marriage Restraint Act, 1929.

^{page 33 note 6} e.g. in the law of waqf, where a major encroachment of English principles so upset the Muslims of India that an attempt had to be made to re-establish the Islamic doctrine by the passing of the Mussulman Wakf Validating Act, 1913. But many other examples could be given.

^{page 34 note 1} Although some of its provisions cannot claim any such authority, while in others the relevant authority has certainly been handled with considerable latitude.

^{page 34 note 2} It is noteworthy that in Indonesia, on the other hand, adat or customary law has always prevailed, in large part, over the It would seem, then, that the law of the future must here represent an amalgam of three elements: of the modern, the Islamic, and the customary.

^{page 34 note 3} Published in the Gazette of Pakistan, Extraordinary, on 20 June 1956 (Government of Pakistan Press, Karachi).

^{page 35 note 1} And much the same is true in Pakistan, also.

^{page 35 note 2} While they are also, in many cases, beneficiaries from charitable waqfs.

^{page 36 note 1} Shaykh Muhammad al-‘Anānī.

^{page 36 note 2} Especially Russian, in the case of those with communist views.

^{page 36 note 3} e.g. the Muslim brotherhood, with its slogan ‘The Qur'ān is our canon’.

^{page 37 note 1} Kenneth Cragg, op. cit., 142 f.

^{page 38 note 1} And a new school has been established in Damascus for the study of law, largely with this objective in view.

^{page 38 note 2} cf. the statement that the first of the ‘basic principles’ of the constitution of the Islamic Republic of Pakistan is the ‘supremacy of the will of the people as embodied in a Parliament of their chosen representatives’.

^{page 38 note 3} As is proposed in Pakistan—contradictory though this is to the alleged supremacy of Parliament.

^{page 38 note 4} Or, as was originally suggested in Pakistan, to a committee of ‘ulamā’.

^{page 39 note 1} Provided they pay the prescribed taxes and do not insult Islam, etc.

^{page 39 note 2} Which provides, inter alia, for freedom for each individual to change his religion.

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