Page 214 - Encyclopedia Of World History Vol III

islamic law 1033

most basic beliefs and practices. In addition, the opin- explicitly comment on them, are assumed to have had
ions, or more accurately the formal legal judgments, of his silent approval. The Maliki school based in Medina
Muhammad’s companions, such as the rightly guided held that as the ones living in the home of the Prophet,
caliphs, were often considered legally binding. they, more than anyone else, practiced the customs of
which Muhammad approved. For the founder of the Mal-
Further Options iki school, Malik ibn Anas, the local custom of Medina
for the Jurist was equated with consensus—since all (Medinan) Mus-
There are two other sources of law that are closely lims agreed on their custom. In this manner more Arab
related to each other and to the use of reason. The first tribal custom entered the sharia.
allows judges some leeway in the interest of fairness.The
jurist is allowed to pick the solution that seems to him Qanun (Sultanic
the fairest of all possible solutions to a legal case.The sec- Prerogative)
ond is consideration of public welfare.That is, a regula- The sharia is normally thought of as encompassing all
tion that prevents harm to or secures a benefit for the aspects of life. It provides regulations concerning activi-
community can be issued by a jurist. ties as diverse as performing prayer, paying tithes, getting
Each of these rational methods is practiced by at least married, committing adultery, charging interest on loans,
some of the schools of law. None, including the use of receiving inheritance, obeying authorities, and taxing Jews
analogy, is allowed to infringe on stipulations provided and Christians.The religious, social, economic, and polit-
by the Quran and the Sunna. Nor do these methods have ical all fall under the purview of the sharia. And so it is
relevance when it comes to religious doctrines and prac- assumed that the sharia regulates all aspects of life. How-
tices; such matters are the exclusive jurisdiction of the ever, the rulers of Muslim territories—caliphs, gover-
Quran and the Sunna. However, they do demonstrate nors, and later sultans—found that they needed to make
that the sharia can be and has been partially adaptable their own regulations for activities not addressed by the
to new situations as they arise, despite the rigid frame- sharia.These regulations, civil laws, or codes came to be
work that ash-Shafi‘i promulgated. known as Qanun, from a Greek word for imperial taxes.
Qanun (especially in the sense of financial regulations
Customary Law issued by the ruler) began quite early in the Islamic world
Prior to the revelations to Muhammad, the Arab tribes with the second caliph,‘Umar I (c. 586–644 CE). He de-
may not have had a formal legal system, but they did cided that the newly conquered land in Iraq that had
have traditional ways of doing things that, even if they belonged to the Sassanian state, aristocracy, and priest-
were not written down, did regulate and guide their lives. hood should not be divided among the conquerors, but
This Arab tribal custom survived the coming of Islam. In held for the payment of salaries of Muslims. Likewise, the
fact, Arab tribal law and perhaps even some of Roman land tax system ‘Umar adopted was based on the Sas-
(Byzantine) and Sassanian law as practiced in Egypt, sanian model. For such practices the sharia is silent, and
Syria, and Iraq were incorporated into the sharia. so there is no conflict between it and Qanun.
In the sharia, custom is not normally a formal source From Qanun as financial regulations, which were
of law, and when it is, it is not given much prominence. issued by the caliph or some other ruler, developed the
In practice however, it had an enormous impact. Custom practice of sultans issuing laws not found in the sharia,
was absorbed into the sharia in many ways. Sunna not which they ordered without any consideration for the
only consists of that which Muhammad said and did, but legal principles that were used to establish laws in the
also that of which he tacitly approved. That is to say, sharia.That they could do so was based on power—their
activities of Muslims of Muhammad’s time, if he did not authority as the ruler.