An Introduction to Islamic Law (9 page)

However, there remained points of friction between political power and religious law. The relationship between the two was constantly negotiated, and it was never devoid of sporadic challenges mounted by the ruling elite, not against the law, but against its application by its representatives. And while such challenges seem to have occurred mostly in the provinces and on the periphery, the caliphs themselves also appear, on rare occasions, to have interfered in the judiciary and the judicial process. Yet, it remains true that the caliphal office was thought to uphold the highest standards of justice according to the holy law, and the caliphs themselves felt such responsibility, generally conducting themselves in accordance with these expectations. Inasmuch as the law in and of itself possessed authority, the caliph and his office were seen not only as another locus of the holy law, but also as its guarantor and enforcer. As a rule, the caliphs and their provincial representatives upheld court decisions and normally did not intervene in the judicial process.

From the first centuries of Islam until the later Ottomans (who ruled vast areas from the sixteenth to the twentieth century), Islamic political culture displayed a particular, if not unique, pattern of governance. As a rule, monarchs and their lieutenants acted with remarkable fairness and justice when arbitrating disputes and conflicts to which they were not parties. Their occasional infringements were usually associated with, and limited to, cases in which their own interests were involved. Although this
in no way means that encroachment occurred whenever such interests were present, it does suggest that whenever rulers staked their interest in the judicial process, they had to weigh their overall gains and losses. To have accomplished their ends through coercion would have meant that their legitimacy had failed the test. On the other hand, total compliance with the law at times meant that their quest for material gain or will to power would be frustrated. It was this equation that they attempted to work out and balance carefully, at times succeeding but at others not. The
POST-FORMATIVE
centuries of Islamic history suggest that rulers generally preferred to maintain an equation in favor of compliance with the religious law, since compliance was the means by which the ruling elite could garner the sympathies, or at least tacit approval, of the populace.

Yet, compliance with the law was a relatively passive act, insufficient on its own to promote and augment the much coveted goal of political legitimacy. As it happened, the sphere of legal education proved to be fertile ground, allowing the ruling dynasties not only to garner legitimacy but also to implement, during the nineteenth century, fundamental and ever-lasting changes in the legal system. It is to legal education then that we now turn.

The informal financial patronage offered to the legists during the early period was in due course to be systematized and institutionalized. It so happened that the law college, the
madrasa
, became the chief means by which the legists were coopted by the ruling elites. The fairly sudden appearance of the
madrasa
on the scene and its rapid diffusion make it impossible to imagine the legal and educational history of Islam without the presence of this institution. Similarly, it is impossible to make sense of the demise of Islamic law during the modern period without taking into account this educational institution. Yet, as a legal and educational institution, the
madrasa
continued to operate in ways thoroughly rooted in the pedagogical tradition that had existed prior to its appearance. This tradition was represented in the
study circle we earlier discussed, at once an educational, legal and sociological phenomenon. The circle was in effect the engine that ran legal education; indeed, the
madrasa
would not have been viable had it not been for the existence of the circle
.

The circle manifested a certain hierarchy, where the
professor would be flanked by his senior students who themselves would soon become teachers or legal specialists of some sort. At times, they were accomplished scholars in other fields, attending the circle in order to gain knowledge or mastery in law. These advanced students also functioned as teaching assistants. A remarkable feature of this circular hierarchy was the perfect continuity between teacher and students. The teacher was the most
learned, the advanced students his immediate subordinates, and the less advanced students the subordinates of the latter.

Until about the fourteenth century, the circle exhibited an intimate relationship between professor and students, especially advanced ones. The professor was not merely a teacher of a technical science, as modern university professors are. He was an educator, a companion, a supporter and a moral mentor. Instilling a deep sense of morality based on the concept of rectitude was as much part of the curriculum as any “formal” subject (if there was ever a curriculum in our sense of the word). As we shall see later, the application of law presupposed a system of social morality, a system upon which the efficacy of law depended and from which it could not be separated. The professor, among others, cultivated in the student the elements of this moral system. The professor–student relationship was often akin to that of father and son, and many students not only resided in, and dined at, the homes of their professors but married their daughters as well. And it was precisely this institution of marriage that fostered close ties between the legal class in one city or region and between and among them in distant locales.

Each professor was free to teach the treatises of his choice, a freedom later mildly restricted by the appearance of authorized texts of law. Although any type of treatise could be taught, abridgments were generally preferred after the eleventh century when they became abundant. Some of these abridgments were specifically produced by professors for teaching purposes, their intent being to sum up legal doctrine by invoking legal principles and alluding to “cases” that supported these principles. The professor explained the terse statements of the abridgment by appealing to the large compendia and
fatwa
collections on which these abridgments were based. The students had to memorize the abridgment, not for its own sake but as an outline of the law embedded in the comprehensive and extensive works. The professor’s function in the circle was to make the abridgment intelligible and comprehensible. Repetition and further explanation of the day’s lesson were performed by the teaching assistant after the professor had left the circle. The teaching assistant also listened to the students recite what they had learned, his task being to ensure that the lesson was understood before the next session was held.

The teaching was manifestly oral. The student did not read the work for himself in silence but listened to the professor, who would recite the work for all to hear. This reading was inevitably accompanied by commentary, the true contribution of the teacher. Learning was also conducted on the initiative of the student: he read the work out loud before the professor, who queried him on difficult points. The two processes of instruction were at times combined. A professor might teach his students a text he had
authored himself, and the students would write down the lectures, thereby producing a copy of the book. Reading the copied text back to the professor constituted a process of certification that ensured that the work conformed in every detail to the demands of the professor. While this process constituted an integral part of the activity of publishing (namely, making hand-written copies of an author’s work accessible to the public), it was often an important ingredient in advanced legal education. The last stage of this education was the writing of the dissertation or “commentary” that showed the mastery of the student in a specialized field of law. Some of these dissertations were, and continue to be, considered impressive treatises on legal scholarship.

For centuries, therefore, the circle – serving as the locus of the educational, social and moral relationships between professors and students – defined Muslim education. It was and remained until the nineteenth century the only Islamic form of imparting and receiving knowledge, despite the introduction of the
madrasa
. The latter, it must be emphasized, did not constitute a new form of education but rather bestowed on the study circle an external legal framework that allowed educational activity to be conducted under the auspices of endowments. The
madrasa
, in other words, affected neither the curriculum of the circle nor its method of transmitting knowledge. It was the professor, not the
madrasa
, who decided the curriculum, and it was he who continued to enjoy an exclusive monopoly over the granting of licenses. The pre-modern
madrasa
s, as “institutions” that possessed no juristic personality, bestowed not a single diploma or license
.

The basic features of the
madrasa
appear to have developed toward the end of the eighth century, when provisions and
salaries began to be made in favor of the staff of certain mosques, including the professors who taught law there. Soon thereafter, some mosques were enlarged to include dormitories for transient students and even for the professors themselves. Eventually, the salaries and food and shelter for students and professors were paid by endowments (
waqf
). The
madrasa
, the last stage of this development, came to meet all the other essential needs of professors and students, and this included an endowed, fully furnished building for the meeting of study circles, sleeping quarters for staff and students, food, a library, paper, ink, and much else
.

The founding in
Baghdad of eleven imposing
madrasa
s during the second half of the eleventh century by the
Saljuq vizier
Nizam al-Mulk (1063–92) was a significant event that brought the
madrasa
onto the
center stage of Islamic history. By the end of the century, the
madrasa
had spread to lands west of Baghdad, including Cairo, Damascus and, later, Istanbul, the capital of the Ottoman Empire. By the time the
Mamluks came to power in the middle of the thirteenth century,
Cairo had thirty-two
madrasa
s, and
Alexandria could claim several more. According to one count, Cairo would increase its
madrasa
s to seventy-three by the early fifteenth century, and by 1869 the active
madrasa
s of
Istanbul alone had reached, by the lowest estimate, 166, with no fewer than 5,370 students.

The significance of this astounding proliferation of
madrasa
s will be addressed later. But in order to appreciate fully the meaning and ramifications of this increase, especially in light of modern reforms, it would be better to dwell further on the nature and constitution of the
madrasa
. Physically, the
madrasa
was constituted of a building that at times was the mosque itself, but at others was a special structure built as an annex to a mosque. Inns were also built in the vicinity of the mosque, separate from the
madrasa
, but at times they constituted a part of the annex that was the
madrasa
. Yet all this, even the wealth that was needed to sustain it, was not enough for “raising up” a
madrasa
. There was something else needed to bring all these ingredients to operate in a particular way, and this was the monumental law and practice of
waqf
, a defining and enormously important aspect of the culture and material civilization of Islam.

The law of
waqf
, therefore, represented the glue that could bind the human, physical and monetary elements together. Essentially,
waqf
was a thoroughly religious and pious concept, and as a material institution it was meant to be a charitable act of the first order. One gave up one’s property “for the sake of God,” a philanthropic act which meant offering aid and support to the needy (this latter defined in a broad sense). The promotion of education, especially of religious legal education, represented one of the best forms of promoting religion itself. A considerable proportion of charitable trusts were thus directed at
madrasa
s, although
waqf
provided significant contributions toward building mosques, Sufi orders, hospitals, public fountains, soup kitchens, travelers’ lodges, and a variety of public works, notably bridges. A substantial part of the budget intended for such philanthropic enterprises was dedicated to the maintenance, daily operational costs and renovation of
waqf
properties. A typical
waqf
consisted of a mosque and rental property (e.g., shops), the rent from which supported the operation and maintenance of the mosque.

Once the founder alienated his or her property as a
waqf
, the act was legally deemed irrevocable, entailing as it did the complete transfer of the right to ownership from the hands of the founder to those of God. Once alienated, the property could not be bought, sold, inherited, gifted, mortgaged or transferred in any other manner. The only exception was when
the property ceased to serve its intended purposes. Only then was it permissible to sell it in order to purchase another, usually equivalent, property that would serve the same purpose. The property was usually immovable, but some movables, such as books, were at times the object of
waqf
s. Thus libraries constituted an essential part of endowed
madrasa
s
.

The
founder appointed trustees to manage the property, designated beneficiaries, and determined the
ratio of benefit for each beneficiary. He could appoint himself or a member of his family as the trustee of the
waqf
and could stipulate that he and/or one or more of his descendants could alter, in the face of changing circumstances, the terms of the
waqf
deed. However, once the deed was certified and witnessed (usually before a judge), the founder could no longer effect any substantive changes to its stipulations. The
judge had the ultimate power to supervise and oversee the
waqf
 ’s administration, budget and operation, and he intervened whenever a situation not covered by the deed arose or whenever he felt his intervention was necessary or called for.

The
trustee administered the
waqf
in accordance with duties, responsibilities and powers specified in the deed. He could appoint assistants or deputies to help him in the dispensation of these responsibilities, the most important of which were: maintenance of the
waqf
properties; appointing and dismissing staff whose duties included cleaning and repairing; leasing property and collecting rent for the sake of the beneficiaries and for payment of salaries; farming land and selling its produce to generate supporting income; and resolving disputes and representing the endowment’s interests in any litigation.

The charitable nature of the
waqf
dictated that the rich could not benefit from charitable endowments, and this was the understanding of the majority of jurists. A minority of later jurists, however, came to approve of establishing endowments for the benefit of the well-to-do, a modification of doctrine that appears to have reflected the practice on the ground.

The average Muslim individual founded mainly the smaller, local and less significant endowments. On the other hand, it was almost a universal pattern that the founders of those major endowments that supported, among other things,
madrasa
s and
Sufi orders were the rich and powerful, in particular the
ruling elite and their retinue. Their endowments dwarfed not only all other endowments, but even the large public buildings in Muslim cities. A case in point is the
madrasa
of the Mamluk
sultan Hasan, built in
Cairo at the end of the fourteenth century. Of colossal dimensions, it features a spacious inner courtyard, flanked by four large halls that hosted the study circles of four professors, each representing one of the
legal schools of
Sunni Islam. Multistoried edifices lying between these halls supported other
madrasa
s, with each
madrasa
offering its students
separate accommodation and a mosque. The endowment’s student population exceeded five hundred, and all but about a hundred of these studied law. Those who did not specialize in law studied, among other things,
Quranic exegesis, Prophetic reports, language, logic, mathematics and medicine. Several imams led prayers in the various mosques of the college, and over a hundred Quran readers maintained an uninterrupted recitation of the Quran
. All building and personnel expenses were paid by endowed revenues, as were the costs of construction itself. Typically, all major
madrasa
s included such facilities, not to mention other features such as primary schools and a tomb chamber for the founder and his family
.

These towering and awe-inspiring royal buildings outlived the more modest
waqf
s and, more importantly, projected the ruler’s munificence and political power. This projection is a nearly universal characteristic of rulers, and as such it must have been partly on the mind of the sultans, emirs and their political dependants when they embarked on establishing these endowments. Yet, this consideration was not the prime motive behind their seemingly auspicious acts. Uppermost in their minds was their crucial (even desperate) need to find a group or an entity that could represent their rule to the masses and represent the masses before their rule. If the latter part of the equation was important, it was so because it served the imperatives of the former, which at the end of the day amounted to little more than an anxious search for
legitimacy.

The question that inevitably arises here is: why this search? The answer lies partly in the universal nature of pre-modern government, and partly in the specific circumstances of the Muslim context – in contradistinction, for instance, to those of China and Europe. Pre-modern governments typically exercised their power through small ruling elites, with a limited sphere of direct influence. As we noted earlier, they could not penetrate the societies they ruled, nor could they regulate the internal affairs of their subject populations.

More importantly, rulers failed to have
systemic
control over the societies they governed because they lacked the mechanisms necessary to administer the smallest units of which these societies were made. This is another way of saying that the pre-modern state lacked the
bureaucratic organization that provided the tools for establishing particular relations of power, relations that are the cornerstone of all modern political regimes. Once firmly rooted in a society, impersonal bureaucracy tends to replace personal rule. Unlike bureaucratic rule, therefore, pre-modern forms of governance depended upon
personal loyalty rather than upon obedience to abstract, impersonal regulations.

The absence of pervasive bureaucracies from such pre-modern forms of governance meant that the ruler was navigating at the surface of the
societies he ruled. Even if he had a staff that could be hierarchically deployed to reach the lowest social strata, loyalty to him progressively dissipated as it moved away from the center. In other words, in the absence of the modern rule of bureaucracy (with all its attendant props, including nationalism and surveillance), the farther the pre-modern official found himself from the center of power, the less loyalty he had to the ruler, and, in turn, the more loyalty he had to the social group from which he hailed. Thus, the ruler could neither penetrate nor control or integrate these societies. He merely sat atop a pyramid of “self-reliant” groups consisting of linguistic and religious communities, guilds, clans, village assemblies, city councils and literate elites whose internal ties of loyalty were unsurpassable, and whose daily lives were barely touched by whatever administrative machinery the ruler could muster.

In the specifically Islamic context, there were at least three features in the exercise of political power that further intensified the gap between the ruling elite and the populace. First, the rulers and dynasties of the Islamic world, at least from Transoxiana and India to Egypt (but to a certain extent also in South East Asia), were not native to the territories they ruled. In general, they and their armies neither shared the cultures of the populations they governed nor spoke their languages. Arguably, this alone was a formidable obstacle. Second, until the thirteenth century, Islamic dynasties did not last long enough to establish genuine roots among the subject populations, in terms either of creating a “rule of bureaucracy” (as had been achieved in Europe) or of building institutionalized mechanisms that tied them in a particular relationship of power to these populations. Owing to the fluid nature of political loyalty, no policy that may have aimed at creating such mechanisms could have outlasted a ruler’s death, for loyalty was to the person, not to a policy enshrined in “corporate” governance. Third, and despite the ancient secretarial traditions of the Near East, Islamic rulers could never command powerful and intrusive bureaucracies such as those developed in Europe or Sung China. With the partial exception of the Ottomans (a semi-European empire), the Muslim ruling elites saw no need to develop the surveillance–bureaucratic mechanisms which Europe later excelled at producing
.

Thus, the dynastic rulers who governed Muslim lands after the ninth century (and who eclipsed the caliphate) could not administer their domains directly, having constantly to appeal to the legal profession that served as representatives of the “self-reliant” groups referred to above. This appeal, as we saw earlier, was also characteristic of the
caliphate, although the latter differed from the
warlords in one important respect: it possessed the politico-religious authority to speak and act in the name of Islam, whereas the later foreign rulers did not, for they were mostly
foreigners and, as if this were not enough to alienate them from the populace, they were in want of authority as well as
legitimacy. Accordingly, they stood in dire need of local, indigenous support. It was the legal profession that provided this support, but not readily and not without much reluctance, for a substantial investment had first to be made on the part of these rulers in order to successfully coopt this profession.