Lecture II
September 7, 2010
Islam as a Legal System
By Moorhead Kennedy
This week, we are going to take up Islam as a legal system, or the Shari’a, a word meaning ‘path’, the path to man’s salvation. Of all the materials that I plan to present in this course, this is the toughest, and perhaps the most important, for it is at the very heart of Islam.
The Shari’a is very different in concept from our Western idea of law. If Western legal systems embody one’s rights, the Shari’a is based on one’s duties. It is the sum of duties required by God of human beings, not only to God but also to one’s fellows. It is the infusion of Divine Purpose into human relationships that distinguishes the Shari’a from the secular jurisprudence of the West.
Islamic Law has never been an empirical study distinct from religion. It is the practical application of religion. Although it embodies human intelligence, it is essentially of divine inspiration, and hence immutable.
I mentioned last week how westerners tend to look into Islam to find grounds for their disdain. Similarly the Shari’a, which is the key to Islam, a great intellectual edifice produced by a great civilization, is characterized in the West in terms of that which revolts us, for example, cutting off the hands of thieves, or the stoning of women taken in adultery. These penalties are part of Middle Eastern customary law dating back a long time before Muhammad. We run into the stoning of women in the New Testament.
Rather we are talking about a very sophisticated body of law, embracing constitutional law, jurisprudence, contracts, evidence, criminal law, inheritance, agency, a great range. It is still the basis of law in Saudi Arabia, applied not at all in Turkey, and applied only in part throughout the Middle East.
Today, the application of the Shari’a is generally limited to what we call family law (marriage, divorce, orphans), inheritance and charitable foundations. Law in other areas, notably commercial law, is generally borrowed from the West. You will have noticed how the restoration of the Shari’a has become a major constitutional issue in Iraq, and elsewhere.
Where did the Shari’a come from? Its initial source is the Qur’an, revealed in its entirety to humankind through the Prophet, Muhammad. There is another source, which we discussed earlier, based on the tradition, God has not invested in any human being what he placed in the prophet. A series of traditions about the prophet, what he said, what he did, are called hadith. We gave some dental examples earlier. These illustrate his way, or Sunna.
Let’s go over why the Qur’an, and the traditions, or Hadith, are not just convenient sources, the reality that you have to start somewhere. Rather, they are infallible. Understanding why this is so is really the opening to understanding Islam.
The infallibility of the Qur’an and the Hadith reflects a profound awareness of the imperfection of human reason, its inability to apprehend by its sole powers the real nature of the good, or indeed any reality whatsoever. Absolute good and evil can therefore be known to only through a divine revelation mediated through Prophets.
To review what was discussed last week, God has provided a succession of such Prophets ever since, by the creation of Adam, the human species has existed upon the earth. The revelations accorded to these Prophets were all identical in principle, but formed a gradually developing series adapted to the stages of man’s development. Each in turn expanded, modified and abrogated the preceding revelations.
The Qur’an is the final revelation, and therefore contains the final and most perfect solutions for all questions of belief and conduct. It is the primary source of law. But the Qur’an is short, and much of it is hortatory. There is no room for detailed explanations.
For example, the law of contracts has its source in Sura, or chapter, V, O ye who believe, fulfill your pledges. But that doesn’t exactly tell you when a contract arises, what considerations or formalities are required, what are the consequences of breach.
How are these initial revelations to be interpreted, developed and applied? Now, the natural interpreter is the Prophet himself. He possessed not only the book, as revealed to him, but hikma, or practical wisdom through which basic principles can be applied to the details of life.
So, via the Hadith, the actions and sayings of the Prophet, transmitted as we have seen by a chain, or isnad, of reliable reporters, formed what was originally a kind of commentary on the Koranic source.
From this starting point, it was easy to conclude that the commentary itself was indeed inspired. Ultimately, it was believed that in all his sayings and doings, the Prophet was acting under tacit inspiration. His Sunna, or way, together, of course, with the Qur’an, supplied solutions to the problems of good and evil.
How are these sources to be applied? Here begins Fiqh, the science of legal interpretation, which is one of the glories of Islamic civilization.
For example, the Prophet’s Sunna, is determined by a series of Hadith. But, how do you determine which hadith are authentic? Or, suppose two of equal authority are in conflict? Does one abrogate another? Is a hadith limited to particular historical circumstances, or to a particular class of persons? It was decided that unless a limitation was expressed or clearly implied, it was universally applicable.
Finally, jurists had to weigh the meanings of words, and decided that, unless they were clearly used metaphorically, they were to be taken in their plain Arabic meaning. Our Supreme Court has decreed much the same about construing statutes, with American English instead of Arabic.
A final source of revealed law is called ijma’, or consensus, in this case of the whole Islamic community. A hadith declared that however much individuals may err, God will not permit the whole community of Muslims to go astray. This could have been a source of continuing flexibility. As we will see, it hasn’t.
Soon there developed a class of learned doctors of the law, the ‘Ulama. They were perceived to possess ‘ilm, or legal/theological knowledge. The words ‘ilm and ‘Ulama come from the came root. By the end of the second century, ijma’ was exercised not by the whole community, but by the Ulama, who used it to fill up all the remaining gaps in the system.
Now, what of those points of law not clearly covered by the Qur’an or Hadith? Muslim jurists had resort to analogy, or qiyas. A problem left unanswered was compared to a similar one already dealt with. The logical steps that led to the solution of the answered problem indicated a parallel route along which a solution to the unsolved problem could be found.
Finally, when none of these yielded an obvious solution, a jurist could fill in the interstices, the hole between the Qur’an and Hadith, as validated by Ijma’, through the issuance of a legal opinion or fatwa. You have all heard of fatwa, once again popularly understood in terms of abuses, such as Khomeini’s calling for the death of an Anglo-Indian novelist.
A jurist entitled to issue a legal opinion, or fatwa,is called a Mufti. Same root word. The collections of leading fatwa are the very rough equivalent of leading cases in common law.
And if the new problem appeared to resemble two equally closely solved problems with different results, then the jurists could adopt the one that yielded the most just result. In deciding what is just, the jurist is guided by some basic principles.
Thus, “the fundamental rule of law is liberty”. But, says the Muslim jurist, human nature is weak, easily led astray, ungrateful and covetous. Right? Therefore, in the interests of both the individual and society, limits, ordained by the Wisdom and Mercy of God, have to be set on human freedom of action. There are two kinds of limits, corresponding to the dual nature of man, as soul and body. Limits to benefit the soul are principally the five pillars, prayer, alms, fasting, haj or pilgrimage, and jihad, discussed last week. Those related to the body are duties to one’s fellow man.
Islam recognizes that the majority of human actions do not come within the scope of law. The presumption, based on the principle of liberty, is that unless shown to be otherwise, actions are morally and therefore legally indifferent, and therefore ‘permitted’. From this basis, actions are classified in five grades:
1) Actions obligatory on believers
2) Desirable or recommended (but not obligatory) actions
3) Morally indifferent actions
4) Objectionable, but not forbidden, actions
5) Forbidden actions
Now, we turn to some practical examples of how this system actually works. Rather than doing a survey of all the different kinds of law, we will look at the Law of Inheritance, how it developed, and, above all, the ethical values which it reflects. At our stage in life, these issues are familiar, or should be, and most important. The examples I plan to cite represent issues that your own lawyers, accountants, or estate planners may raise.
There is no situation in which one’s ethical principles are put more to the test than in the family, particularly when family property is involved. Moreover, the law of inheritance, unlike most other branches of the Shari’a, is enforced to this day, throughout the Islamic world.
But first, a word on how the Islamic Law, as illustrated by the law of inheritance, developed. Its origins lay in the tribal customs of pre-Islamic Arabia, which was a society devoted to the blood feud and the raid. Wealth defended in one raid was often as not booty seized in a previous raid. Inheritance was therefore a redistribution of the spoils among those of the deceased’s kin who normally fought beside him. Women, being neither raiders nor defenders, inherited nothing.
As one means of raising the status of women, Muhammad established them in the inheritance scheme. In the Qur’an, at Sura or Chapter IV, 11, it is written: “ in the matter of your children a) to the male, the portion of two females, and b) if there be women two or more, then to them two-thirds of what he leaves, and if one, then to her one-half. This provision, that daughters inherit only half what sons inherit, has been seized on by the media as something that Iraqis and others should correct, if they want a democracy. But wait a minute.
It has been suggested that that (b) was the Prophet’s first intent. The daughters took out their required share, leaving the balance to be divided among the nearest male relatives. You can imagine what the male relatives thought of that one! With, say, two daughters and two sons, the daughters would divide the two thirds, taking a third apiece, while the once predominant sons, the good old boys, who in the ‘good old days’ took everything, would receive no more than one-sixth apiece.
Obviously, the males wouldn’t stand for it. So (a) was put in, ensuring that each son would twice what each daughter received, one-third, while each daughter received one-sixth. With his prestige and interests safeguarded, the tribal male could submit to God’s command.
Today, we hear feminists around the world pointing to this distribution as an example of unfairness to women. It is clear that the Prophet was doing his best, all that was politically possible in those times, to help women.
The problem is inflexibility. There is no flexibility here. These are required shares. The object of these dispositions is primarily religious. All property is God’s. Since men and women have only the use of it, God will direct its disposition to further his purposes, which include the recognition and rewarding of family relationships.
This contrasts with the prevailing Western concern over the integrity of property, keeping it together. Perhaps the most obvious example of the integrity of property is primogeniture, still in force where land is so entailed in England. The need to preserve landed wealth requires that land pass undivided to the eldest son, cutting out younger sons and daughters.
Because of the same concern for property, when an American dies intestate survived both by his parents and his children, his parents, however needy, take nothing, and his children take all. The law presumes an intent to pass family property down to the younger generation as intact as possible. I’m sure that we all follow that principle in our own testamentary dispositions.
A Muslim who dies leaving both parents and children has no such liberty. The aging parents together would take at least one-third of the estate, following the Qur’an’s reminder, “Your parents or your children, ye know not which of them is closer to you in the benefit they bring”. In Islam, God requires that men reward the affection and take care of the needs of aging parents in the widespread family. That wealth is thereby likely to be dissipated is a lesser consideration.
You will recall that the Islamic axiom, “the fundamental rule of law is liberty”. What of that ultimate freedom, to dispose of your worldly goods as you see fit? The Qur’an started with the freedom to make a will. “Bequeath” it says, “to your relatives in reason”. Later revealed verses, the ones we have just been discussing, set out the required shares.
This left open the problem of whether a Muslim, through a bequest, could leave something extra to relatives already taking required shares. So here, as I mentioned, where there is a gap in the Qur’an, the Muslim jurist turns to the Hadith, the tradition of the Prophet. A very authentic tradition quotes him, “ Surely, God has given to anyone entitled to anything his due – therefore there is no bequest to an heir.” You cannot substitute your desires for God’s decree.
A second problem not resolved in the Qur’an, how much of his estate a Muslim can leave by will, and how much must be reserved for division into required shares, also had to be resolved by Hadith. Reportedly, the Prophet fixed a bequeathable maximum of one third. Where did he get one-third?
It just so happens that this proportion, one third by will, two-thirds by required shares, was that of Roman law. This proportion may have entered Mecca and Medina during the Prophet’s time, or it may have been picked up when the Arabs conquered Syria, Egypt and other former Roman provinces. Certainly some of the hadith were spurious, convenient ways of incorporating tribal or other local custom, as well as Roman law, into the Sharia.
Earlier, I mentioned how an Islamic Qadi, or judge, makes judgments based on their ethical merit, a range going from required to permitted to forbidden. We said that God’s uses for property prevail over peoples. It is yet another way of saying that Islamic Law is less a statement of rights than of obligations. Let me give you a practical example.
In 1941, my grandmother, a long-time summer resident of this island, in her will left a series of legacies which amounted to more than she actually had to leave. The august Philadelphia law firm of Ballard, Spahr, Andrews and Ingersoll, I’m afraid, had neglected to tell her about estate tax.
In such a situation, some legacies normally are sacrificed, or abated, in some order. By what standards, reflecting what values, do you abate legacies? Here the difference between western legal norms and the Sharia is at its most stark. American courts first sacrifice property not specifically covered under the will, next property disposed of under a general residual clause, and finally property that has been specifically bequeathed.
The most specific legacies presumably are those that the decedent cared most about. In other words, the American judge is concerned with identifying and giving effect to the decedent’s intent, to his or her desires.
By contrast, the Islamic Qadi, concerned with the decedent’s obligations, will sacrifice legacies according to the inverse order of their ethical merit. First to go are morally forbidden legacies, then ones morally discouraged, then ones merely permissible, then those deemed meritorious, always preserving to the last where possible those that are obligatory.
Of course, bequests to pay unacknowledged debts are obligatory, since otherwise unknown creditors would suffer loss. Bequests owed to God enjoy less protection, since God can better stand the loss. But within the bequests to God, the same reasoning usually prevails. A bequest to have prayers said to God is sacrificed ahead of one to pay alms to the needy. This class of bequest is to be preferred, however, to bequests of no ethical merit. These classifications, applied to all human actions, pervade Islamic Law.
Not all Sharian jurists will come out the same way on these issues. There are variations among the four principal orthodox or Sunni schools of Islamic law. All are valid. With exceptions, each school, or madhab, recognizes each other. One basic difference among them is how much room they give to authority, how much to human reason.
The Hanafite School, founded by Abu Hanifa (died 767 CE) developed under the Abbasid Caliphs in Baghdad. Once the official school of the Ottoman Empire, and today the most widespread, the Hanafites tend to use their own judgment in deciding between which tradition to apply.
In reaction is the Maliki School, founded by Malik ibn Anas, a practicing judge in Medina. (He died in 795 CE) In Medina, you will recall, the theologians and jurists battled to maintain the true faith against the foreign influences pouring into Baghdad. This school profoundly disapproved of the speculative tendencies they found in the Hanafite School, relying instead on the exclusive validity of authoritative Hadith.
Today, the Maliki School is centered in North Africa, being the sole school recognized in the Sharian courts of Morocco and Algeria. Next week, when we discuss the status of women, we will look at a marriage contract according to the Maliki code, involving a young lady named Fatima.
One of Malik’s disciples, ash-Shafi’i, established a true juristic science based on the critical examination of Hadith. He combined the respect for tradition of the Malikis with Hanafi initiative but based more on analogical deduction, or Qiyas, than on speculation. The Shafi’i school is centered today in Indonesia, East Africa, Southern Arabia, and Lower Egypt.
Finally, we get to the Hanbali School, founded in Baghdad by Ahmad ibn Hanbal, who died in 855 CE. His school was a reaction against the liberalism of the Hanafi School. Centered in Saudi Arabia, it is strict constructionist, and somewhat intolerant of the other schools.
As an example of how these schools come out differently, let’s go back to the decedent’s will. All four schools recognize the hadith, or tradition, that entitles the believer to leave one third of his goods by will. But the tradition concludes with “a third is a good deal, and much, for leaving your heirs wealthy is better than leaving them in want, begging of others.” I’m sure we would all agree with that.
To what extent is this hadith a further guarantee of the right of bequest, and to what extent a restriction of this right in order to protect the fixed heirs from impoverishment? The distinction becomes important when a poor man dies, leaving barely enough for his relatives’ support. In this case, the Hanafi view, the most liberal one, respects the right of bequest, but considers it preferable that the decedent not exercise it.
The Hanbali School, the strict constructionists, stresses the restriction, refusing to recognize a will that leaves assets away from required heirs. Yet each recognizes the perfect orthodoxy of the position adopted by the other.
Finally, we have talked a lot about authority and restriction. But the Muslim testator is no different from the rest of. If in place of the Shari’a, the traditions, you were to substitute the IRS, you would find in both societies the desire to evade requirements that you don’t agree with..
For example, many of us have been advised by our attorneys to consider a Charitable Remainder Trust. So long as the principal goes at the end to a charity, you can provide income from a base not diminished by estate tax, and with the income until distributed, not subject to income or capital gain tax.
Well, the CRT was invented in Islam, through the Waqf, or charitable trust, which does much the same. This is one way in which perceived inequities in the treatment of male and female heirs can be corrected.
Let’s see how these requirements play out in two identical families, one in New England and the other in the Muslim world where the Hanafite Code is applied. Neither decedent has made a will. The Court will distribute the property of the American decedent according to the intestacy laws of Massachusetts.
Intestacy laws generally reflect how the legislature believes that most people would want property distributed. Like the Shari’a, therefore, they tend to reflect the values of society in a very sensitive area. I bring these up here to illustrate the values that are operative in the West, and in Islam, and how they are the same, and how they differ.
So we start with a typical family, illustrated in the handout. The propositus, the founder of the family wealth, is a widower. Since we will be discussing the female spouse’s inheritance rights next week, we will keep her out of this exercise. Also, we assume that he will not make a will. In fact, in this family, nobody makes wills. We further assume that none of them made any money in their father’s lifetime, and that the estate tax has been everywhere abolished. Everything the propositus has will be distributed according to intestacy laws over here, or the Shari’a over there.
The propositus has four children. As you will see in the handout, A and B are sons, C and D daughters. Son A has three sons, A1, A2 and A3, and one daughter, A4. Son B has a son, B1, and two daughters, B2 and B3. Daughter C has a son and a daughter, whereas daughter D has no children, and never will.
Now, in Massachusetts, the propositus dies. Each of his children, treated equally, receives 1/4 of his estate. When their time comes, each share is further divided, so that A1, A2, A3, and A4 each receive 1/16 of the original estate of the propositus. By the same rule, B1, B2 and B3 each receive 1/12; C1 and C2 each receive 1/8. When D dies without issue, each of her brothers and sisters receives 1/3 of her 1/4 or 1/12.
Now let’s suppose that members of the family do not die off in the order expected. Assume that C predeceases her father, the propositus. Then he dies. The ¼ that C would have taken is split evenly between her two children, each taking 1/8. That is exactly what they would have taken had C outlived the propositus.
In Massachusetts, and indeed throughout common law countries, the order of death should make no difference. Whoever dies first, the heirs of the next generation take what their parents would have taken, and not more or less. By the same token, the estate of the propositus is not redistributed evenly among all his descent per capita, regardless of which generation they are in.
This is the meaning of the phrase, per stirpes and not per capita that you see in wills and trust instruments. The principle whereby a grandson can represent his dead father and take the share upon his grandfather’s death that his father would have taken, is called stirpital representation. It goes back a long way, some say from the end of the 12th Century, from public indignation at King John’s usurpation of the throne at the death of his brother, King Richard I, otherwise the Lion Hearted, to the exclusion and death of Richard's son, Arthur.
Now, what Western values are here represented? One is that, to the extent possible, everyone is treated alike. Secondly, again to the extent possible, no one suffers the pain of disappointment. You can count on your expectations.
Now, let’s look at the same family, now Muslim, and located in the Middle East.
The propositus, a widower, dies. Both his sons are treated equally with each other. Each son gets a third. The two daughters are treated equally with each other. Each daughter gets a sixth. But, for the reasons already mentioned, men and women are treated unequally.
Suppose, now that daughter C predeceases the Propositus. When the Propositus dies, her children do not divide the 1/6 that their mother, C, would have taken. Indeed not.
There is a convenient hadith, Give the appointed shares to those entitled to them. Then, whatever remains is for the nearest male. In short, the Prophet was willing to do something for the women of a family whilst they were still alive. Once they were dead, they have no rights. Neither do their children. Instead, what would have been her 1/6 is redistributed according to the tribal rules of succession through males.
So, with C already gone, when the propositus dies, his estate is divided into fifths. Sons A and B each take 2/5, daughter D takes 1/5. The shares of the uncles and the aunt are increased at the expense of C’s children, their own nephew and their niece.
Now, suppose son A also predeceases the Propositus. A being no longer alive, he is not around to receive a share. His death therefore cuts out his 4 children. Son B takes 2/3, and daughter D 1/3.
OK, let’s visit a different misfortune on this family. When the Propositus dies, his daughters C and D are still very much alive. Sons A and B, however, have predeceased him. Since there are no longer brothers who have to be given twice that of their sisters, then C and D take their appointed Koranic two thirds of his worldly goods, each taking 1/3.
What of the residue, the third not appointed by required Koranic shares? As we have pointed out, the tribal rules enter back in to dispose of the residue. The residue is distributed back to the male line, to the children of A and B. Then the Qur’an steps back in. Each grandson takes twice what each granddaughter takes. Having been cut off in one way by their fathers’ untimely deaths, these inherit in another way, by tribal rules governing the residue.
Now, the point I am trying to make is that there is no certainty in this process. The heir of a younger generation cannot count on anything. It is aleatory, by the role of the dice, all depending on who dies first. An otherwise humane system seems to break down, when a nephew can be excluded by his own uncle.
Why did this happen? It has been suggested that Muhammad himself, an orphan had been excluded by his own uncle. Perhaps the impetus for reform having been exhausted, he just left this one alone.
But I like to think that there is a deeper reason here. The Prophet saw inheritance reforms, the Koranic rules as opposed to the tribal, as a means of recognizing closeness of relationship. It is observed in the Sura IV, which I quoted earlier, “Your parents or your children, ye know not which is closer to you in the benefit they bring”. Aging parents always got 1/6. And so live children are deemed to be closer to the Propositus than grandchildren. Therefore they get more.
I wanted to make the point that both systems, our stirpital application, and the Islamic system, are ethically founded. It’s a matter of the values to which you attach the greater weight. Still, the excluded grandson has been a matter of some concern.
In Morocco, without disturbing the Sharian rules which are immutable, they have found a way to resolve the problem. You will recall that the Islamic will, which can dispose of one third of the decedent’s property, has always been instinct with obligation. A convenient hadith was found, which reads, “If a man makes bequests to strangers, and passes over his relatives, bequests must be taken from the former, and given to the latter.” So the Moroccan Code of Personal Status provides that the will be used to take care of excluded grandchildren.
One final point. What about the many American Muslims of strict observance? They have come over here largely for economic reasons. They do not find here the legal and cultural autonomy that would permit them to function entirely satisfactorily as Muslims. They live, in Bernard Lewis’ words, “the essential difference between the classical Islamic and the modern Western views of the nature of law and authority, and therefore of the function and jurisdiction of the state”.
In strict Islamic legal theory, Muslims are either forbidden to reside in countries in which Islamic Law is not enforced, or discouraged from doing so. In the United States, however, the law is not a “respecter of persons”. Here there cannot be, as there is in varying degrees in the Middle East, one law for Muslims, another for Christians, and another for Jews.
Still, ours is a flexible society. Muslims need to take out mortgages, like anyone else, but cannot pay interest. So today, banks in Brooklyn and other areas of Muslim settlement will write Islamic mortgages. You don’t pay interest. You pay a fee.
In a nation that does not enforce the Shari’a, Muslims try to safeguard their Muslim collective personality in other ways. Just as Jews in Christian Europe clung to the dietary and other requirements of the Talmud in order to set themselves apart, so young Muslim women are at pains to wear the chador, and other marks of Muslim identity.
But, in the closing weeks of her first campaign for the Senate, Hillary Clinton sent back contributions from organizations with Muslim-sounding names, for fear of offending her Jewish supporters. The NY Times commented that this was hardly the way to encourage Muslims to assimilate into American society. .
We don’t want any group of our fellow Americans to feel invisible, powerless, subject to ridicule, dealt with according to a double standard, sensing that they really don’t count. People in that situation can dramatize their anger in the demolition of symbols of power. In a world in which we are likely to be the target of more Muslim terrorist attacks, let’s do all we can to make our country one which inspires loyalty among all its citizens, not excluding Muslims. And perhaps, in such areas as concern and support for one’s aging parents, we might even learn something from them.
Thank you
