An Introduction to Islamic Law (8 page)

With the background provided in the previous chapter, we now turn to discuss how the class of legists perpetuated itself and how its evolution intertwined with the interests of the ruler. During the first two or three centuries of Islam, education was largely and deliberately disconnected from politics, being limited to private scholarship which the rulers sought to influence without much success. The story of this chapter is that of the transformation of legal scholarship from a highly independent enterprise to a markedly subordinate system that came to serve the ruler and his administration. However, as we have already intimated, this eventual subordination did not mean that the content of the law and its application was compromised by any political accommodation. In fact, it was the ruler who – from the beginning of Islam until the middle of the nineteenth century – consistently had to bow to the dictates of the Shari
a and its representatives in governing the populace. As a moral force, and without the coercive tools of a state, the law stood supreme for over a millennium.

Sometime during the late tenth century, the law college, known in Islamic languages as the
MADRASA
, came into being, exhibiting a tendency to superimpose itself over the
study circle, and in the long run changing some if its features. The circle differed from the
madrasa
in one crucial respect: it was largely a free scholarly gathering of a professor and his students, for the most part without political interference and unfettered by financial patronage. The
madrasa
, on the other hand, was as much, if not more, a financial and a political phenomenon as it was an educational one, and it subjected legal education to increasingly systematic control by rulers. It was established as a charitable trust through the law of
WAQF
, whereby a mosque would be dedicated to the teaching of law, and the professor and students provided with, among other things, stipends, food, a library and dormitories. While ordinary men and women founded many such
madrasa
s, these remained limited educational projects usually having no effect or influence beyond the local neighborhood.
What gave rise to the complex relationship between law and politics was the important fact that those who founded the largest, most affluent and most prestigious
madrasa
s were the rulers and their immediate entourage (viziers, commanders, mothers, wives, brothers and daughters). Legal education and the informal circle could not, in other words, escape the effects of political control. An account of the development of pre-modern Muslim education is therefore important not only for its own sake, but also, as we shall later see, for explaining the foundational and dramatic changes that befell Islamic law during the modern period.

To understand the historical evolution of Islamic legal education, a number of threads must be brought together. First, we must trace the dynamics of the early relationship between the legal scholars and the
caliphate, for in these dynamics lie the seeds of the political elite’s interest in the jurists, judges and their law; second, a brief account of legal education within the circle is in order, for it was this forum of legal scholarship that remained, until the nineteenth century, the most enduring mechanism of transmitting knowledge in Islam; third, we need to describe the rise of the
madrasa
and its patronage, a line of enquiry that can hardly be separated from the law of
waqf
, which was in turn vital to the
madrasa
’s very establishment; and finally, we will return to the relationship that obtained in pre-modern times between the legal profession and the ruling elite
.

During most of the first century of Islam, the main representatives of the law were the proto-
qadi
s who, to all intents and purposes, were not only government employees and administrators of sorts but also laymen who – despite their experience in adjudication and knowledge of customary law – had no formal legal training of the sort that came to prevail later. Their appointments as
qadi
s were most often combined with other functions, including posts as provincial secretaries and story-tellers who transmitted biblical stories, Quranic narratives and details from the biography of the Prophet. In these capacities, they functioned as the provincial governor’s assistants, if not – on rare occasions – as governors-cum-
qadi
s. In the near absence of a class of private, legal specialists at this time, these proto-
qadi
s constituted the bulk of what may roughly be termed a legal profession, and as such they were an integral part of the ruling class.

Despite the inseparability of the proto-
qadi
’s office from that of government administration, the government in this early period rarely, if ever, interfered in determining what law was applied. The caliphate was by no
means a distinct or a comprehensive source of law. No edicts regulating law are known to have come down from caliphs; there were no constitutions, and certainly no legal codes of any kind. Even when no class of legal specialists had yet appeared, neither the caliphs nor their viziers or provincial governors made any effort to control or appropriate the sphere of law, which was largely customary and Quranic.

The legal role of the caliph was one of
occasional
legislative intervention, coming into play when called for or when special needs arose. But this intervention must be understood to have been harmonious with those laws and rules propounded by the proto-
qadi
s, for the caliphs drew on the same sources. The caliphal legislative function was thus minimal, falling well short of the role of exemplary religious and political leader. In this latter role, some – but by no means all – caliphs were seen by the proto- and later
qadi
s as providing a good example to follow, but this was not because of royal edicts or intrusive policy. The occasional invocation of a caliph’s ruling was an entirely private act, the free choice of a
qadi
or a scholar. On the other hand, caliphal orders enjoining a judge to issue a particular ruling were a rare occurrence and ephemeral. Such orders did not represent “secular” or “royal” law as opposed to religious law, but rather a different interpretation of the same sources of authority. In such cases, caliphs were themselves pronouncing on law as
jurist-
qadi
s or acting on the advice of legal specialists or
qadi
s sitting in assembly with them. Thus, the proto-
qadi
was principally a government administrator who acted largely according to his normative understanding of how disputes should be resolved – guided, as he was, by the force of social custom, Quranic values and the established ways of the forebears.

The early caliphs saw themselves as equally subject to the law, and acted within the consensual framework of a distinct and largely binding social and legal fabric. Like their predecessors – the Arab tribal leaders and even Muhammad himself – they viewed themselves as part not only of their communities but also, and primarily, of the social and political customs that had come down to them across the generations and from which they could not have dissociated themselves. The proto-
qadi
s’ relative judicial independence was therefore due to the fact that social, customary and evolving religious values governed all, but were no more known to, or incumbent upon, the caliph than his judges
. If the judges queried the caliphs with regard to difficult cases, it was also true that the caliphs queried the judges. That
knowledge of the law – or
legal authority – was a two-way street in the first century or two is abundantly clear; the caliph of Islam was far from an exclusive source of law, and not even a distinct one.

The emergence, around 700 AD, of a class of
private legal specialists signaled a new phase in Islamic history, one characterized by the
spreading in Muslim societies of a new religious impulse accompanied by an
ascetic piety that became the hallmark of the learned religious elite in general and of the jurists and later
mystics in particular. The importance of this piety in Muslim culture cannot be over-emphasized, either at this early time or in the centuries that followed. If anything, its increasing force was to contribute significantly to later developments. Yet, even in this early period, ascetic piety took many forms, from dietary abstinence to abhorrence of indulgent lifestyles (with which the later caliphs were, with some exceptions, partly associated). Above all, this piety called for justice and equality before God – the very emblem of Islam itself.

By the end of the first century and the beginning of the second, it had become clear that a wedge existed between the ruling elite and the emerging legal class. This wedge made itself evident with two concurrent developments, the first of which was the spread of a new religious ethic among the ranks of the legal specialists, who increasingly insisted upon ideal human conduct driven by piety. In fact, it is nearly impossible to distinguish this ethic from the social category of legal scholars, since the scholars’ constitution was, as we have said, entirely defined by this ethic of piety
, mild asceticism and knowledge of the law and religion. The second wedge was the increasing power and institutionalization of the ruling elite, who began to depart from the egalitarian forms of tribal leadership known to the early caliphs and according to which they had conducted themselves. The later caliphs began to live in palaces, wield coercive powers, and gradually but increasingly distance themselves from the people they ruled. This gap was further increased by the growth in size of Muslim populations, especially in the larger cities throughout the Muslim lands. Thus, while earlier, smaller communities were easily accessed by the ruler, the later communities were large enough to prevent him from forging personal alliances and ties at a local level.

These religious feelings, enriched by ethical and idealistic values and inspired by the extensive
religious narratives of the story-tellers and
TRADITIONISTS
(those who recorded and transmitted exemplary Prophetic biography), began to equate government and political power with vice and corruption. This attitude originated sometime around the end of the seventh century, and was reflected in the many accounts and biographical details speaking of appointments to the office of judgeship. As of this time, and continuing for nearly a millennium thereafter, the theme of judicial appointment as an adversity, even a calamity, for those so designated became a recurring detail of biographical narrative (amply recorded in the countless biographical works the jurists have written about themselves). Jurists are reported to have wept – sometimes together with family members – upon hearing the news of their appointment;
others went into hiding, or preferred to be whipped rather than accept office.

Suspicion of political power and of those associated with it was so pervasive that the traditionists – and probably the story-tellers amongst them – managed to find a number of Prophetic traditions that condemned judges and rulers alike, placing both ranks in diametrical moral and eschatological opposition to the learned, pious jurists. On the Day of Judgment, one tradition pronounces typically, the judges will be lumped together with the sultans in Hellfire, while the pious jurists will join the Prophets in Paradise. Yet, this profound suspicion of association with the political did not mean that the legists predominantly refused judgeships, nor even that they did not desire them. In fact, by and large, they accepted appointment and many junior legists must even have viewed it as a high point in their careers. At the same time, the ruling elite could not dispense with the jurists. Religion and, by definition, legal knowledge had now become the exclusive domain of the jurist, the private scholar. It is precisely because of this quality of learning and knowledge that the ruling elite needed the legists to fulfill the Empire’s legal needs, despite its profound apprehension that the legists’ loyalties were not to the government but to the civil populations and to their own law and its requirements, which frequently conflicted with the views of the ruling class. However, the fact remained that each side needed the other, and thus both learned to cooperate with each other
.

Many legists were often paid handsome
salaries when appointed to a judgeship, but they also often received generous grants as private scholars. Throughout the eighth century, the remuneration for judicial appointments was steadily on the increase, reaching by the end of the period levels of income that made judgeships in large cities highly coveted. The
qadi
s, however, were not alone in benefiting from government subsidies. The leading private scholars were no less dependent on the government’s financial favors, and this, as we shall see, was for a good reason.

The rulers, on the other hand, were in dire need of
legitimization, which they found in the circles of the legal profession. The latter served as an effective tool for reaching the masses from whose ranks they had emerged and whose interests they represented and protected. As we noted, the jurists and judges emerged as the civic leaders who, though themselves a product of the masses, found themselves, by the nature of their profession, involved in the day-to-day running of civic affairs. Jurists and judges felt responsibility toward the common man and woman, and on their own frequently initiated action on behalf of the oppressed without any formal petition being made. As a product of their own social environment, the
legists’ fate and worldview were inextricably intertwined with the interests of their societies.

Hence the religious scholars in general and the legists in particular were often called upon to express the will and aspirations of those belonging to the non-elite classes. They not only interceded on their behalf at the higher reaches of power, but also represented for the masses the
ideal of piety, rectitude and fine education. Their very profession as
Guardians of Religion, experts in religious law and exemplars of the virtuous Muslim lifestyle made them not only the most genuine representatives of the masses but also the true “heirs of the Prophet,” as one Prophetic report came to attest. They were the locus of legitimacy and of religious and moral authority. The later caliphs realized that brute power could not yield legitimacy, which they were striving to attain. Legitimacy lay in the preserve of religion, erudition, ascetic piety and moral rectitude; in short, in the
persons
of those men who had profound knowledge of, and fashioned their lives after, the example of the Prophet and the exemplary forefathers. Thus, these caliphs understood that, inasmuch as the pious scholars needed their financial resources, they in turn needed the scholars’ cooperation, for the latter were the ruler’s only source of political legitimacy.

Increasing
Islamization among the masses throughout the first two centuries of Islam left the caliphs no option but to endorse the religious law as interpreted by the legal scholars. Those who had mastered this science (of jurisprudence) were the jurists, and it was they and their ability to determine the law that set restrictions on the absolute powers of the rulers, be they caliphs or provincial governors. The caliph and the entire political hierarchy that he commanded were subject to the law of God, like anyone else. No exceptions could be made. The very reason for the caliphate itself was to enforce the religious law, not to make it. If the caliph occasionally involved himself in resolving legal problems, he did so on a par with the legists, and not as one superior to them in their roles as judges and jurists. His engagement was an integral part of, and no more than a supplement to, the legists’ interpretive activities. The result then was not a struggle over religious authority, where the caliphs competed with the legal scholars, for the caliphs did not challenge the legal scholars in their own domain of competence. Rather, caliphal engagement in the law represented an effort to gain political legitimacy through a demonstration of juristic competence that the jurists and the early caliphs (who were set up as models to be emulated) possessed.

As caliphs increasingly grew detached from what had become a specialized field of
legal knowledge, they were expected to surround themselves with competent jurists who would assist them in addressing difficult legal
matters. This, being conducive to their legitimacy, they duly observed in practice. So, whereas the earliest caliphs could acquire legitimacy by virtue of their own knowledge of the law, it later became necessary to supplement the caliphal office with jurists who routinely sat in royal courts and who, in effect, constituted the legitimacy that the caliphs (and later all sultans and emirs) needed
. In these
royal–juristic assemblies, not only were matters of religion, law and literature discussed, but scholarly disputations were held between major jurists. Almost every caliph of the eighth, ninth and tenth centuries was known to have befriended the legists, and later emirs and sultans did much the same.

The privileges and favors the jurists acquired not only brought them easy access to the royal court and to the circles of the political elite, but also rendered them highly influential in government policy as it affected legal matters, and perhaps in other matters of state. Beginning in the middle of the eighth century, almost all major judicial appointments were made on the recommendation of the
CHIEF JUSTICE
at the royal court or the assembly of jurists gathered by the caliph, or both. And when the provincial governor wished to find a qualified judge, he too sought the advice of jurists. Some jurists, throughout Islamic history, were immeasurably influential in legal as well as political matters.