Page 215 - Encyclopedia Of World History Vol III

1034 berkshire encyclopedia of world history

Tsze-kung asked, saying, “Is there one word which may serve as a rule of practice for
all one’s life?” The Master said, “Is not Reciprocity such a word? What you do not
want done to yourself, do not do to others.” • Confucius (551 bce–479 bce)

Despite these dictatorial actions by some sultans, the is well covered by the sharia. Some jurists criticized this,
Qanun and the sharia have generally been free of con- as they believed that the sultans were overstepping their
flict. Originally, Qanun did not trespass into areas where rights and could not supersede the sharia under any cir-
the sharia had jurisdiction.Additionally, in the early years cumstances. Others supported the sultans by invoking
of Islam, there was more allowance for other sources of legal principles of the good of the community, customary
laws for the sharia. For example, decrees, like those by law, or even traditional laws, especially in newly con-
‘Umar, along with customary law, could be integrated quered territories.
into the law by interpreting them as in accord with the
behavior of Muhammad, his companions, and the early Traditional Laws in African
Muslim community, and not exclusively that of Muham- and Asian Societies
mad. Also, a product of ash-Shafi‘i’s reform was to pro- Just as the pre-Islamic Arabs had customary laws, so too
duce a narrower definition of what constituted sharia.As did the peoples to whom Islam came later. No less than
a result, many of the administrative concerns of the ca- those of the Arabs, the indigenous customs of these peo-
liphs and sultans fell conveniently outside of the sharia’s ples, particularly in Africa, south Asia, and Southeast
jurisdiction. This suited the sultans, who were eager to Asia, were very durable. However, they could not be
increase their own power vis-à-vis that of the caliph, absorbed into the sharia through Sunna by means of
whose duty it was to enforce the sharia. Finally, the right tacit approval and consensus. Nor did these traditional
of the sultan to make and enforce law was justified with- laws, unlike Qanun, try to avoid the jurisdiction of the
in the sharia by arguing that it served the public interest. sharia.The traditions had to stand apart or even in oppo-
And so jurists, and hence the sharia, gave to the sultan sition to the sharia. For some Muslim peoples, the social
the jurisdiction in matters of the military, non-Muslim reality did not concur with the religious ideal that the
taxes, conquered land, penal codes, the economy, and sharia was the sole guide to a Muslim life. Islam became
any matter on which the sharia was silent. Moreover, the their religion, but not their way of life.
public had a religious duty to follow these orders from Of course, in reality there was often a compromise
the sultan. between the sharia and custom. At one end of the spec-
trum, the religious courts that implemented the sharia
Sharia and Qanun had largely eliminated local custom, and at the other
The situation changed somewhat after the fall of the there may not even have been religious courts, so that all
Abbasids in 1258, when the sultan’s authority to gener- legal matters fell under the purview of customary courts.
ate all manner of laws greatly increased. The Turks and However, the two could also operate in conjunction,
the Mongols brought from central Asia a tradition that dividing up the legal realm between them. That the sul-
gave the ruler the power to issue decrees for the sake of tan had some discretion in this matter made it easier to
justice and the welfare of the state as he saw fit.This form join traditional laws and the sharia. Occasionally, tradi-
of state law became common in the Ottoman and Mug- tional practices could still be sanctioned by the sharia
hal empires. Under the Ottoman sultan Süleyman I (1494 through the use of various legal means, such as juristic
or 1495–1566) an official set of Qanun were promul- preference and ensuring public welfare. It was also pos-
gated in the empire. Generally, a sultan would issue an sible for the sharia to function within the established reli-
edict as the need arose.These first applied only to adminis- gious courts, but for people to simply ignore the courts
trative, financial, or penal codes. For example, under the in favor of traditional ways. North Africa, India, and
Ottomans, guilds developed codes that judges of the Southeast Asia are three regions of the Muslim world
sharia implemented. However, later in the Ottoman em- where people have often preferred their traditional laws
pire, Qanun also addressed property laws, a subject that and customs to the all-encompassing claims of the sharia.