Islamic law differs from Western law, because it’s premised on the idea that law came from a divine source. The word for law is shar, that which is prescribed, and the word Sharia has a con

Based on the reading,
1. In classical Islamic law, what did a qadi or judge actually do? What tools did they use to resolve legal disputes where the legal scholars came to conflicting opinions?
Reading,
Islamic law differs from Western law, because it’s premised on the idea that law came from a divine source. The word for law is shar, that which is prescribed, and the word Sharia has a connotation of the right way to the water. Humans cannot know every principle of Sharia, only God can. Humans can only have fiqh or insight into what the law is, and that’s why there are multiple systems of fiqh or insights that exists side-by-side. Islam never had a single centralized uniform authority like the Roman Empire provided to Christianity in its early years. The absence of a single sovereign is part of a deeper cultural acceptance of diversity of opinion among the faithful. We’ll look at some of these differences in greater detail as we go. Islamic law has several very basic fundamental differences from Western law. This make it akin more so to Jewish law, the Halakha, the Halakha, which is based on a series of religious texts like the Torah, as well as a mass of centuries of scholarly commentary. Like Jewish law, but unlike Western law including the law of the Christian kingdoms of Europe. Traditional Islamic law was not subject to the authority of the state, it is personal law. It defines your relationship with God, not your relationship with the ruler or the government. It applies to all Muslims wherever they live even if they live in a place that has another legal system or that’s the majority non-Muslim. Christianity conquered the state, we might say, but the state conquered Islam. The Christianity never saw a contradiction between the secular rulers of, for instance, the Roman Empire and God or the religious authorities. But the state is foreign to Islamic law. The state as we know it from the Western world, didn’t appear in the Islamic world until the later 1800s when the Ottoman Empire modernized and through the process of colonialism. Therefore, we cannot assume that Islam recognizes a separation of church and state. This makes sense for another reason, which is that Islam is a religion based on practice, not a religion based on theology. In this sense is again similar to Judaism, but different in Christianity. In Christianity, your membership in Christianity is defined by your faith. What you believe? you believe certain things? In Islam, it’s not about what you believe, it’s about what you, how you practice. For instance, in Roman Catholicism, you have to believe certain articles of faith. For instance, that maybe Mary was born without sin, that Jesus is fully human and divine, that the Pope is infallible, these things. If you don’t believe these things, you are not a Roman Catholic. Maybe you’re something else, maybe you’re Lutheran. Islam does not have a theology like that. So long as you believe that there’s one God and Muhammad’s his prophet, well, that’s most of it. There could be more complex theologies in Islam, especially at more mystical traditions of Islam like Sufism or variations of Sufism. But these aren’t germane to Islam as a religion. Islam is a religion defined by its practice. You pray the requisite number of times a day. you follow certain dietary guidelines? you tithe? you your pilgrimage to Mecca? In that respect, Islam is not a religion that is practiced privately. It is a religion that’s observable because it’s based on practice of the faith, because it’s based on outward expression of the faith. Therefore, we can’t assume that like Christianity, Muslims can practice their faith in the privacy of their own homes. The introduction of the state changed the nature of Islamic law. The colonialism subordinated Islamic law to the law of the rulers, usually Western rulers. The exception were those areas that matter the least to Western rulers, like family law, divorce, marriage, inheritance. Islamic law, it knows respects continued to dominate in those fields. Colonialism, and this includes perhaps the modernization of the Ottoman Empire in the late 1800s. Focused on codification of Islamic law that this obsession with writing down what the law was, that is a product of colonialism. That’s a product of Western domination over Islam. Islamic law in the 1800s under colonialism became static, it no longer had that inherent flexibility that it had in classical times. This map shows the extent of the Islamic world, which covers a broad swath of the Earth’s surface. As you can see, it covers an enormously variable range of different regions, different ethnic groups, different languages. There is no single political structure that encompasses all of this region. The darker the green, the higher the proportion of Sunnis. The darker the red, the higher proportions of Shia. Oman is neither, which is why it’s blue. As we’ve mentioned, Islam has no overriding compulsion toward uniformity, which is different than perhaps the Christian West. The Islamic stance is to accept consensus. But where consensus cannot be achieved, diversity of views among the faithful is seen as a gift from God. Therefore, there is no need necessarily for higher political structure to impose uniformity on the faithful. The most important source of Islamic legal knowledge, is the Quran. Which is the word of God himself as revealed it to his prophet Muhammad. The Quran is superior to all other conflicting sources of law. If there appears to be a contradiction, what the Quran says controls. That having been said, the Quran is not especially explicit about legal topics. But in fact, the legal pronouncements in the Quran are so sporadic and particular and incomplete that they’re insufficient to even govern a small society like a village. Certainly, they say very little about criminal law or about a person’s behavior in society. In fact, the provisions involving crime and punishment number maybe a half a dozen. What it does say is very important, but it doesn’t say much. The Quran is supplemented therefore, with two other sources of sacred writings. These are the hadith, which are the sayings of the Prophet Muhammad, and the sunnah, which are the traditions of the prophet Muhammad including his acts and deeds. Now, the hadith, the prophet lived a long life and did a lot of teaching in later years. He had a lot of sayings, but the authoritativeness of many hadith is open to question. For a hadith to be credible, to be deemed authoritative, it must have a proven chain of custody and be referred to by multiple sources. If hadith appear to conflict, a judge must weigh them, which ones are consistent with the Quran. A more specific hadith will probably triumph over a less specific hadith. Certainly, a more authoritative hadith is superior to a less a authoritative hadith. By the 10th century or so, the hadith collections were frozen. There were no more additions to that body of writing. When resources of law are unclear, jurists and judges are permitted to reason by analogy. This reasoning process is called ijtihad. Now, in theory, judges and jurists are not allowed to make law, the universe of law is closed, it’s based on these religious writings. There’s no room for adding innovation. However, Islamic law employs a lot of mechanisms that allow for modification of some legal rules to meet unforeseen circumstances or ease the burden of governing and in complex societies. For instance, Islamic banking, the commercial law in the Shari’a prohibit the charging of interest. However, if you take a loan from an Islamic bank today for instance, instead of payment of interest, what is attached to the loan is a schedule of fees. The structuring financial transactions in that way really is required in the modern economy and this helps maybe modify the traditional or classical Islamic rule that charging of interests is a form of usury or theft. Islam does not have a clergy, but it does have a religiously trained class. This is important because this religiously trained class was autonomous of the state. Communities ruled themselves. Empires would sweep in and sweep out but the authority of that legally trained class would continue, and that is what gave it its authoritativeness. Islamic law governs all aspects of life, including your relationship with God which is why it includes things like ritual purity and prayer. The powerful legal class includes Muftis who we might call jurists and qadis who we might call judges. Closest equivalent to a mufti is perhaps a Rabbi, someone who is a legally trained scholar or authority, not necessarily a government official although later in the Ottoman Empire judges and muftis were paid a salary. Muftis are private legal specialists who issue fatwas which is their interpretation of a certain question or problem that arose for which the religious sources are unclear. The juristic writings of the muftis, they’re are jurisprudence,. They’re the collection of their works, is a source in itself of Islamic law. The authoritative muftis writings depended on how widely respected that mufti was, and how persuasive his writings were. Most muftis had apprentices who had come to study under that master jurists. They formed a study circle around him, learning his legal knowledge and being trained in his methods of interpretation. Some of those study circles evolved into schools or universities what we might call madrasa. The madrasa just like the salary of the mufti and a qadis in classical times was paid for by arms giving and by endowments, by charity from the faithful. Some master jurists in Islamic history have achieved such prominence, that their methods of interpretation and their writings have evolved into schools of jurisprudence. We’ll look more at these schools of jurisprudence in a little bit. The qadis are judges, they resolve individual disputes. Sometimes the qadis will refer a question to a mufti for resolution. The qadis were often appointed by the ruler but they weren’t government officials, they were autonomous of the state, that they really were a religious authority in a lot of ways. The role of a qadi or a judge is quite different than what judges in the West. A qadi instead of applying general principles, instead has to sift through hundreds of very specific legal rules that could apply to the facts in front of them, typically relying on the medieval writings in each of the schools of jurisprudence rather than having to go all the way back to the original religious sources himself. A judge is generally forbidden from innovating law or making law on his own. However, much of what judges and muftis involves this reasoning processes ijtihad. For every scenario, there could be two, three or six different interpretations as to what the law is each held by a different jurist. As we mentioned, Islam values that diversity of opinion, that there’s not necessarily any desire or need for a uniformity. The traditional Islamic law is characterized by flexibility and adaptability. It can evolve and develop over time. This reasoning process can include several factors; logical rationology is a product of Greek rational thought for instance from the Greek philosophers; consensus of the community, the prophet said his community together can never be an error; public interests, so there’s utilitarian elements perhaps, and the preference of the jurists, what’s the scholarly opinion. For instance, when coffee became known to the Islamic world, several 100 years after the death of the prophet there was a debate about whether caffeine was a drug, and whether coffee would be permitted. The scholars came to all different conclusions, but the consensus of the community was to accept coffee. We’ll see that different schools of jurisprudence put different emphasis on these different reasoning elements that some of them favor certain interpretive methods over others. Colonialism and the imposition of the state on the Islamic world changed this, but Islamic law became codified by the colonial powers, by the Ottoman Empire, and by others which removed its inherent flexibility. In fact, we can trace a deterioration in the status of women and outsiders in the Islamic world to this deprivation of flexibility, that this increasingly inflexible codified Islamic law worked to the disadvantage of women and other minorities. There’s traditional endowments, the walk of, which had been paid for by charity from the community, building water fountains, and pumps, building bridges, building hospitals. Those functions transferred to the state. They were no longer be created by the community at large, rather they were created by a government. Finally, the independent legal profession and this class of jurists was eventually absorbed by the state, becoming paid government officials in the Ottoman Empire by the late 1800s. In the overwhelming majority of the Islamic world, and in particular in its largest population centers, Islamic law does not form the comprehensive law of the state today, rather Islamic law governs only a few select areas that the government enforces, in particular family law, inheritance, divorce, marriage, what we might call law of personal status that most countries have a European style of criminal code. For instance, Egypt has a Napoleonic code. We might consider Bangladesh or Pakistan to be English common law countries with written constitutions that are interpreted by judges. It’s only a fairly small slice of the Islamic world where Shari’a law forms the comprehensive law of the state. This is a modern innovation. In classical times of course, Islamic law was independent of imperial law or the law of the governing administration. If you look at this map, the countries that are in purple are those countries where Islamic law applies as a general legal system. Some of these countries are hard to categorize. Pakistan for instance is an English common law country, although it has a constitution that in principle establishes Shari’a law as the highest source of law over the constitution, Iran and Saudi Arabia even more so in that direction. Countries in yellow are countries where Islamic law only governs personal law, the law of personal status. We’re talking about family law, divorce law, inheritance, paternity, child custody, these kinds of things. In the countries in green, Islamic law has no official status, that people can follow if they want as a personal matter, but the government is not going to enforce it. Countries in orange, typically are countries where they have one region such as Northern Nigeria or Aceh Province, Indonesia that operates under Shari’a law

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