The content and enduring effects of Magna Carta are addressed by other contributors to this volume. For this chapter, I only wish to invoke the most widespread understanding of this instrument, namely, that it came to be regarded as one of the primary catalysts in the emergence of the rule of law in England and later in much of the liberal democratic world. My aim is to show that a comparable yet far more powerfully structuring event in the constitutional history of Islam was the Qur'ān itself, the most authoritative voice in that tradition, past and present. Islam's robust system of the rule of law, which lasted until the nineteenth century, is in great measure due to Quranic teachings; or at least originated therefrom.

The question that inevitably must concern any student of Islamic political and legal history is why the early caliphs and, later, the multitudes of mighty sultans, never made law, much less found themselves in a sovereign political-legal position (as King John was) to grant their subjects anything resembling the Great Charter of Liberty. The protections that Magna Carta afforded, and much more besides, were granted to Muslim subjects irrespective of the approval or disapproval of these caliphs and sultans. Why did law-making remain throughout the centuries the business of jurists, not caliphs or sultans? Whence did the Sharīʿa get its ‘thick’ concept and practice of rule of law and separation of powers?

Legal scholarship on the Qur'ān, far removed from the epistemological and psychological foundations of Islam, fails to see the conditions in Islam under which God's will could be interpreted and applied. In the gestation of Magna Carta, John Baldwin has brought welcome attention to the importance of Archbishop Stephen Langton's exegesis of the Hebrew Bible: Langton was trying to realise through the Charter a biblical kingship in England. This valuable work does not yet, however, address in relation to Magna Carta or Europe's Middle Ages a question basic to the study and practice of classical Islamic constitutionalism: who was qualified – and by what character of learning and insight – to understand, expound and legislate for God's will?

For over a millennium, and until the nineteenth century, the Shariʿa represented a complex set of social, economic, moral, educational, intellectual and cultural practices. It was not just about law. It pervaded social structures so deeply that no ruler could conceive of the possibility of efficiently ruling the population without succumbing to a great extent to the dictates of the Shariʿa order. Involving institutions, groups and processes that resisted, enhanced and affected each other, Shariʿa as practice manifested itself as much in the judicial process as in writing, studying, teaching and documenting. It manifested itself in political representation, and in strategies of resistance against political and other abuses, as well as in cultural categories that meshed into ethical codes and a moral view of the world. It lived and operated in a deeply moral community which it took as granted, for it is a truism that the Shariʿa itself was constructed on the assumption that its audiences and consumers were, all along, moral communities and morally grounded individuals.

The Shariʿa also involved a complex and sophisticated intellectual system in which the jurists and the members of the legal profession were educators and thinkers who, on the one hand, were historians, mystics, theologians, logicians, men of letters and poets, and, on the other, contributed to the forging of a multi-layered set of relations that at times created political truth and ideology while at other times confronting power with its own truth.

Introduction

With the background provided in the previous chapter, we now turn to discuss how the class of legists perpetuated itself and how its evolution intertwined with the interests of the ruler. During the first two or three centuries of Islam, education was largely and deliberately disconnected from politics, being limited to private scholarship which the rulers sought to influence without much success. The story of this chapter is that of the transformation of legal scholarship from a highly independent enterprise to a markedly subordinate system that came to serve the ruler and his administration. However, as we have already intimated, this eventual subordination did not mean that the content of the law and its application was compromised by any political accommodation. In fact, it was the ruler who – from the beginning of Islam until the middle of the nineteenth century – consistently had to bow to the dictates of the Shariʿa and its representatives in governing the populace. As a moral force, and without the coercive tools of a state, the law stood supreme for over a millennium.

Sometime during the late tenth century, the law college, known in Islamic languages as the MADRASA, came into being, exhibiting a tendency to superimpose itself over the study circle, and in the long run changing some if its features.

Methods of legal reform

By 1900, the Shariʿa in the vast majority of Muslim lands had been reduced in scope of application to the area of personal status, including child custody, inheritance, gifts and, to some extent, waqf. In the Malay states and the Indonesian Archipelago, its sphere was even narrower, partly because of the adat which had long prevailed in some of these domains, and partly because of massive Westernization of its contents and form. The present chapter therefore focuses on personal status, following the fortunes (indeed misfortunes) of Islamic law roughly from the end of World War I until the dawn of the twenty-first century.

The Islamic law of personal status was saved from the death blows dealt to other Shariʿa laws (except rituals) by virtue of the fact that it was of no use to the colonial powers as a tool of domination. Even this disinterest was turned into an advantage, however, for colonialist Europe and its academics promoted the idea that the personal law was sacred to Muslims and that, out of sensitivity and respect, colonial powers left it alone. However, once the laws of personal status were culturally marked as such, they were taken as the point of reference for the modern politics of identity. If family law emerged as “the preferential symbol of Islamic identity,” it did so not only because it was built into Muslim knowledge as an area of a sensitive nature, but also because it represented what was taken to be the last fortress of the Shariʿa to survive the ravages of modernization.

In modern legal systems, judges, lawyers and notaries are unquestionably products of the legal profession. They are initially educated in elementary and secondary schools that are regulated by the state, and their education in the law schools from which they eventually graduate is no less subject to such regulation. They study the laws that the state legislates, although in some legal systems they also study the legal decisions of judges who are constrained in good part by the general policies of the state. The point is that the legal profession is heavily regulated by the state and its legal and public policies. It is difficult to think of any legal professional who can go on to practice law without having to pass some sort of exam that is directly or indirectly ordained by the state or its agencies. And when law students become lawyers, and lawyers become judges, their ultimate and almost exclusive reference is to law made by the state.

This situation would have been inconceivable in Muslim lands before the dawn of modernity. The most striking fact about traditional Islamic legal personnel is that they were not subject to the authority of the state, simply because the state as we now know it did not exist (in fact it did not exist in Europe either, its beginnings there going back to no earlier than the sixteenth century).

One out of five people in our world today belongs to the Islamic faith. Yet we know very little about Muslims, about their culture, their religion, their history. Our bookstores are crowded with titles about Islam, mostly negative and nearly always concerned with “Islamic violence.” Islamic law, or Shariʿa, has in particular become an ugly term, as often associated with politics as with the chopping off of hands and the stoning of women. An endless array of popular books have distorted Shariʿa beyond recognition, confusing its principles and practices in the past with its modern, highly politicized, reincarnations. Considering Shariʿa's historical role as the lifeblood of Islam, we have little hope indeed – given these distortions – of understanding the history and psychology of as much as one-fifth of the population of the world in which we live.

This book attempts to correct misconceptions about Islamic law, first by giving a brief account of its long history and then by showing that what happened to it during the last two centuries made it what it has become. While, historically, it did its best to distance itself from politics and to remain an example of the rule of law, it has now ironically become a fertile political arena, and little else in terms of law. The book therefore attempts to provide the knowledge needed to explain why any mention of the Shariʿa provokes distaste and even fear on our part. What brought this about?

The British in India

Until the eighteenth century in India, and the early nineteenth century in the Ottoman Empire, Islamic law and local customs reigned supreme, both having long been a way of life. But during the 1600s, Britain began its penetration of India through the agency of the East India Company (EIC), whose sole goal was commercial profit. For about a century and a half, the EIC tried gradually to increase its political and military influence, but it was not until 1757 that it asserted its almost total military dominance, henceforth embarking upon the massive project of colonizing India, both economically and juridically. In the eyes of the British, economic and commercial ambitions were intimately connected with the particular vision of a legal system structured and geared in such a manner as to accommodate an “open” economic market. The legal system was, and continued to be, the sphere that determined and set the tone of economic domination. But most importantly for the British, the avid desire to reduce the economic costs of controlling the country led them to maximize the role of law. Law was simply more financially rewarding than brute power.

And so it was not until the appointment of Warren Hastings as Governor of Bengal in 1772 that a new stage in the British legal redesign of India got underway. The appointment ushered in the so-called Hastings Plan, to be implemented first in Bengal.

The Ottomans, the longest-ruling dynasty in Islam, governed vast territories extending from Arabia to Eastern Europe to North Africa. The history and practices of the Empire are documented in modern scholarship more extensively and better than those of any other Islamic dynasty. As in the foregoing two chapters, here too we will pay special attention to the legal and judicial practices of this Empire, attempting to uncover that which is new and unique to it, while bringing out those practices that represented a continuation of earlier forms of Islamic justice. This focus is all the more important because Ottoman judicial innovations, brought about during the sixteenth and seventeenth centuries, proved to be instrumental to the fundamental modern transformations effected during the nineteenth century and thereafter.

By 1517, the three holiest cities of Islam – Mecca, Medina and Jerusalem – had fallen under Ottoman rule, while at the same time the surviving ʿAbbasid caliph in Egypt had been moved to Istanbul to lend the regime a semblance of legitimacy. In a strictly Shariʿa-minded sense, Ottoman rule had begun with Bayazid I (r. 1389–1401) who, more than any of his predecessors, sponsored the religious elite, especially the jurists. His patronage differed somewhat from that of Nizam al-Mulk and the dozens of Muslim rulers who had come and gone in the interval. For Bayazid invited the legists to assist him and, in effect, to enter into an active ruling partnership with him.

One of the most important features of the Shariʿa and indeed of Islam as a whole is the pervasive role of the doctrinal legal schools. In Sunni Islam, these schools were four: the HANAFI, MALIKI, SHAFIʿI and HANBALI, named after the four MASTER-JURISTS who were assumed to be their founders. (It is worthwhile noting that these schools are entirely different from, and share no characteristics with, the law schools in our universities nowadays.)

The Arabic word for the legal school is MADHHAB, a term that has several meanings, all of which are interconnected. Generally, the word means that which is followed and, more specifically, the opinion or idea that one chooses to adopt; hence, a particular opinion of a jurist. Historically, this meaning of the term is of early provenance, probably dating back to the end of the seventh century, but certainly to the middle of the eighth. By the early ninth century, its use had become common.

The term madhhab is associated with three other meanings that have emerged out of, and subsequent to, this basic usage, and which reflected the formation of schools. The first of these meanings is a principle defining the conceptual juristic boundaries of a set of cases. For example, an assumption of the Hanafis is that misappropriation, in order to obtain, must involve the unlawful removal of property from its original place, where it had been in the possession of the owner.

Introduction

The question that we need to address briefly at this point is: How did the muftis and author-jurists derive the law from its sources? What, in other words, were the interpretive means and methods of reasoning through which the law was inferred? Before we proceed, however, an important point must be made.

Since the first century of Islam, Muslim legal thinking has had to wrestle with the problem of the extent to which human reason can guide humankind in conducting its material and spiritual affairs. Some philosophers thought that the leading intellectuals might be able to exercise their rational faculties in order to judge what is good and what is bad in the way we deal with each other as social beings, and with the natural world around us. They may know, thanks to their trained intellects, that a certain code of morality or a set of particular laws is rationally required for the orderly and civil functioning of society. They may even understand – given that they have all the facts at hand – that the natural environment around us must not be abused and that we are an integral part of this natural order. Damage that and we damage ourselves in the process.

Mediation

Whereas the great majority of disputes in industrial societies are nowadays resolved by state-instituted courts of law or arbitration regulated by state law, typically pre-industrial societies, and certainly those of Islam, were only marginally subject to government intervention. To put it slightly differently, in pre-modern Islamic societies, disputes were resolved with a minimum of legislative guidance, the determining factors being informal arbitration and, equally, informal law courts.

Furthermore, it appears to be a consistent pattern that, wherever mediation and law are involved in conflict resolution, morality and social ethics are intertwined, as they certainly were in the case of Islam in the pre-industrial era. By contrast, where they are absent, as they are in the legal culture of Western and, increasingly, non-Western modern nation-states, morality and social ethics are strangers. Morality, especially its religious variety, thus provided a more effective and pervasive mechanism of self-rule and did not require the marked presence of coercive and disciplinarian state agencies, the emblem of the modern body-politic.

In speaking of the “legal system,” it would be neither sufficient nor even correct to dwell on the law court as the exclusive vehicle of conflict resolution. In any system, what goes on both outside the court and prior to bringing litigation before it are stages of conflict resolution that are just as significant to the operation of the legal system as any court process.