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415
MAHOMMEDAN LAW

they went, and it was the policy of their leaders to take over the administrative systems of the countries which they seized. Even the Arabic legal nomenclature shows evident signs of literal translation from Latin, and many Moslem principles can be traced to the Roman codes. One important development was plainly influenced by the liberty involved in the Responsa prudentium of Roman lawyers, and by the broad conception of the law of nature in the Edict of the Praetor. In its earliest stages Moslem law recognized in the judge a liberty of opinion (ra'y) which went beyond even that of the Responsa and became plain equity, in the English sense, and one school (the Hanifite) established as a basis the right of preference (istiḥsān) even when the analogy of the code dictated otherwise; while another (the Malikite) used the term istiṣlāh, “a seeking of (general) benefit” to the community, in a similar situation. But these developments were bitterly contested, and the liberty of opinion was in the end narrowed down to a principle of analogy (qiyās), the nearest approach to which in Western law is legal fiction.

It is necessary now to return to the first successors of Mahomet. “For thirty years after my death,” he is said to have declared, “my people will tread in my path (sunna); thereafter will come kings and princes.” This tradition crystallizes the later feeling of Islam. The first thirty years were a golden age; the centre of the state was the Prophet's own city of Medina; the conditions of the state continued in closing conformity to those of his own time. The study of tradition, i.e. of his usage, went hand in hand with the study of law. They were vital functions of the state, and it encouraged both.

Then came the great débâcle. The ancien régime, a semi-monkish, theocratic empire, went down, and the Omayyad dynasty, kings and princes of the old Arab type, took its place (see Caliphate, B). The public life of the state was no longer deeply religious; the pious said that it was godless. Under these conditions law was indeed still needed; but it had to be opportunist. Its development went on, but became speculative. The study of tradition was now private, and its students were more and more the personally pious. There were, thus, two results. On the one hand, the framers of systems of canon law—as it now was—no longer lived in contact with reality; hypothetical and ideal structures were reared which could never stand the touch of the practical law-court. And on another, traditions and law, even this hypothetical law, came to take separate roads. The interest of the students of tradition became the gathering of traditions for their own sake, going no farther than a striving to regulate each detail of life by some specific, concrete, prophetic dictum. They had no use for systems that went beyond the mere registering of these dicta. The feeling also became widespread that any system of government which did not simply reproduce the patriarchal form of Medina was of the world and the devil—a thing with which no religious man could have aught to do. At every turn he would have to peril his soul.

Here we must place the transition of this law with which we have hitherto dealt from being the law of the land to being in essence a variety of canon law. It was always broader than any western secular law. It regulated all the aspects of life-duty to God, to one's neighbour, to one's self. It was really a system of duties, ethical, legal, religious. It did not limit itself to defining the forbidden (ḥarām); but designated actions also as required (farḑ, wājib), recommended (mandūb, mustaḥabb), indifferent ('iz, mubāḥ), disliked (makrūh). It played the part of, or rendered necessary, a religious director quite as much as a lawyer. And for a time at Medina it was really the law of the land. But from the Omayyad period on it has held the position of the canon law of the Roman Church in countries that will not recognize it and yet dare not utterly reject it, It governs, in one or other of its four schools, the private lives of all pious Moslems, it regulates some semi-public relationships—e.g. marriage, divorce, inheritance; it compels respect, if not acceptance, from the state; and by its ideal standard the world, filled with righteousness by the Mahdi, will be ruled in the Moslem millennium.

The rise of the Abbasids brought a change, but not a great one. They had promised a return to the old religious attitudes, and the promise was formally kept. But in substance they were as much as the Omayyads, and though the state was outwardly on a pious footing, and the religious sentiment of the people was respected, the old, absolute canon law was not restored. It was made possible for more theologians and lawyers to work with the state, but an irreconcilable party still remained, and the situation was fixed as it is to this day. It is true that the struggle to adapt such a single and detailed system to all the varying conditions, climates and times of the great empire was impossible; but the failure marked the great rent in the supposed unity of Islam between the church and the world, religion and law.

Yet the Abbasids did, in their way, encourage legal studies, and under them processes and results, long pursued in private, became public. Almost within the first century of their dynasty the four legal schools, or rites, were formed and the principles established which survive to this day.

The first school to take definite form was the Hanifite, founded by Abū Ḥanīfa (d. 767), who left behind him a definite system and many enthusiastic pupils. He was a man of means, in touch with commercial, but not with practical legal life, a speculative or philosophical jurist. Being of non-Arab origin, the usage of Medina had small interest for him. He therefore used few traditions, and preferred to go back to the Koran, and extract from it by reasoning the rulings which fitted his ideas. This he called the use of analogy (qiyās); but, in his hands, it became practically legal fiction, the application of a law in some sense undreamed by its first imposer. But he had another, and still freer instrument. The effect of differences in local conditions had been early observed and admitted in general terms. Abū Ḥanīfa reduced it to a subjective formula. Under such conditions he claimed the right of preference (istiḥsān) of a ruling suited to the local needs, even when the strict analogy indicated otherwise. This met and meets with vehement protest when formally stated, but the usage of Islam has practically accepted it. His system, finally, was not developed through the exigencies of actual cases, but was worked out as a system of casuistry, though in a good sense. He tried, that is, to construct a system of rules to answer any conceivable question. After his death his pupils elaborated it still further, and accepted public office. The 'Abbāsids adopted his school, and threw their influence on its side; its philosophic breadth and casuistic possibilities evidently commended it to them. Later, the Ottoman Turks also adopted it, and it may be said to hold now a leadership among the four legal rites. Its influence has undoubtedly tended to broaden and humanize Moslem law.

Twenty-eight years after Abū Ḥanīfa, Malik ibn Anas, the founder of the Malikite school, died at Medina. In many points his situation was precisely opposite to that of Abū Ḥanīfa, and yet his results were very similar. He was a working jurist, in practical touch with actual life; he was in the centre of the tradition of the usage of the Prophet, in the line, one might say, of the apostolic succession. He, therefore, used traditions much more generally than did Abū Ḥanīfa, and when he, under pressure, took refuge in opinion, he certainly felt that he, under his conditions, had a better right to do so than any outsider. But two of his principles marked a distinct advance and showed that he was no mere traditionalist. For one, he laid down the conception of public advantage (istiṣlāḥ); when a rule founded on even a valid analogy would work a general injury it was to be set aside; justice must not be overcome by logic. And, for the other, he laid stress on the conception of the agreement (ijmā'), an idea which was to have indefinite importance in the future. When the surviving companions of the Prophet, after his death, agreed upon any point as belonging to their store of tradition and experience, their agreement was accepted as final. In the first instance they agreed that such had been the statement of the Prophet. That easily passed over into an agreement that such was the true Moslem view, and finally into an acceptance of the principle that the Moslem Church, when unanimous, could formulate truth—practically as in the canon of Vincent of Lérins, Quod semper, quod ubique, quod ab omnibus. But such a broadly catholic position was still in the future, and for Malik, juristic agreement meant the agreement of Medina, though there are signs that he permitted the same latitude to other places also. It was a way of allowing for local conditions rather than of reaching the voice of the Church. His law book, the Muwaṭṭa', the earliest in our possession written by the founder of a school, has already been mentioned. It is a collection of about seventeen hundred traditions of juristic importance, arranged according to subject, with appended remarks on the usage of Medina and on his own view of each matter.

So far opinion and local usage had fully held their own, and the philosophical jurist had been free to work out his system. The difference between the istiḥsān of Abū Ḥanīfa and the istiṣlāḥ of