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Suzanna Ashraf
TO WHAT EXTENT DID LOCAL CUSTOM INFLUENCE THE DEVELOPMENT OF ISLAMIC LAW DURING THE EARLY CENTURIES OF ISLAM.
In Judaism, a local custom has full judicial power and even takes precedence over a general religious rule.
Quite opposite to it, Islam seems to set out from its very beginning to fight customary practices. Most of its moral attitudes seem to be completely contradictory to the spirit of the Bedouin Arab society at the time of its emergence. We know very little about the life of Arabs before Islam and in the first hundred and fifty years of its existence.
In his study Goldziher analyses the Arab attitudes to the principles of Islam at its rise and finds them mostly negative. He expresses the opposition in two terms: muruwwa, the Arab "virtue", and din, the new religion. "The gulf between the moral views of the Arabs and the prophet's ethical teachings is deep and unbridgeable... Most irksome to the Arab sense of freedom were those restrictions which Muhammed and his doctrine sought to enforce upon the Arab people for the sake of religion... During Muhammed's days the most violent opposition was to the restrictions prescribed in respect of sexual intercourse and wine drinking." ("Muslim studies", 1890, I, p.22;27) He gives example of the customs, rather than Islamic rules being observed as late as fifth century after Hijra, in the case of Qirwash who was married to two sisters at the same time, which is strictly prohibited in the Quran. With the Bedouins, local custom clearly retained its positions, even the more recent study, "Custom and Shari'a in the Bedouin Family" by A. Layish and A. Shmueli found that only in the process of sedentarization, the islamization of the tribal society is tending to complete.
But Islam did not emerge in the desert. By the time of Muhammad's birth Mecca had had a few hundred of years of city life and of being a commercial centre of the region, and that implies quite different mentality, as far as it is determined by the occupations and living conditions. They more readily accepted Islam, and in time became the foreposts of Islamization. But that happened later, while during the Umayyad rule there was a considerable relaxation in the enforcement of Islam, compared to the time of the first caliphs. The old Arab tribal ideas received a new life too.
Schaht mentions some difficulties in applying the Quranic rules to the people not used to it. Often Islam had to give way to the tradition. St. John of Damascus describes thiefs being punished by flogging, rather than by having their hand cut off, as prescribed by the Quran. Also only the testimony of witnesses rather than written evidence was recognised to have legal value, although Quran prescribes the use of written documents (Suras II,282; XXIV,33).
The vast expansion of the Muslim empire in the first Islamic century demanded a large-scale administrative organisation. Policy of the Umayyads was to leave in place the existing administration, appointing a governor to overlook the local affairs. Coulson points out that "Such adoption of existing administrative machinery naturally opened the door to a wider reception of foreign elements in the substantive law proper. Because of the lack of contemporary sources the precise measure of this influence cannot be known, but it must have been considerable." ("A History of Islamic Law", 1964). He gives examples of borrowings from Byzantine - from the legal terminology to such an important Islamic institution as waqf, a religious trust or charitable endowment.
In the old Arab system, those cases which had no ready-made solutions from the sunna (in those times - customary practice of the ancestors), an arbitrator called hakam would be appointed to carry out the judgement. In the role of hakam Muhammad was invited to Medina, he was anxious to be appointed as a hakam in all disputes there, in order to assert his leadership role and to maintain political unity of the new community too. In time, he attempted to banish the institution of arbitration, to replace it with the judgement by God's appointee and in the name of God. During his lifetime he was indeed a person of unquestoinable authority within the muslim community and all the disputes were referd to him. His first successors aspired to appropriate the same role, but with the growth of the state, single-person judgement was no longer possible.
In the Umayyad times, to carry out judicial functions governors of provinces appointed an official called qadi. His main job was to solve disputes by applying the local law (sometimes qadis attempted to apply laws of their own localities, and that inevitably caused clashes). There was a great diversity in their practice. A qadi had full power to apply his own judgement with no restrictions, as there were no higher courts at that time and the central government was not concerned enough with such minor matters to attempt an overall unification. It seems, in an Islamic state, as was the Umayyad Caliphate, Quranic legislation should have provided enough uniformity, especially as it is in the sphere of private law, which was qadi's domain, Quran gives most of its rulings. But still, there is a very small amount of applicable legal material in the Quran, and when it can be interpreted at the discretion of a judge, it can produce extremly different results. Of course, there is always a question of that judge's willingness to apply a religlous, rather than local ruling.
Coulson gives two examples of local variation in application of Quranic law. They both deal with the sphere of divorce and, following it, provision for a repudiated wife. One deals with the exact legal implications of a Quranic verse urging husbands to make "a fair provision" for repudiated wives. (Quran, II, 236, 241) Of three successive judges in the same locality, two considered such provision obligatory and one did not. The second case is caused by a variation in the reading of the Quran. The official text of the Quran says about a finally divorced wife during her waiting period: "Lodge them where you lodge according to your circumstances" (LXV.6). A variant reading added "and bear their expenses". The practice in Kufa followed the variant reading while elsewhere a wife had only the right of shelter in her ex-husbands house. Kufan ruling in favour of women is determined by another factor. In Kufa, a new, cosmopolitan town, which attracted the most forward looking elements of the society and had rich Persian tradition, women had less inferior position. It is further proven by an example of the rights of a widow to contract her own marriage. She was allowed to do so by a decision of Kufan scholars, but in Medina, in a male-dominated tribal society, scholars could not allow women such freedom. The higher position of women in Kufa is further expressed in laws of inheritance, which give them more rights compared to the doctrines of Medinan scholars. Parallel to the practical legal developments from the qadis, there was a lot of scholarly speculation and elaboration in the field of Quranic legislation. Many small schools of law were formed in this period, diversity of their doctrines, determined by their locality, corresponding to the diversity of qadis' practices. The term ra'y was used for such personal reasoning. As part of their activities such schools revised local practices in the light of the principles of the Quran. However, some practices, like the sale of unripe dates against their calculated value in dried dates, which could be said to constitute riba, unlawful interest, escaped their attention. In the late Umayyad time, with the growth of opposition to their rule, protest against the practice of courts was also growing. One form of scholarly opposition was collecting of hadith, or traditions of the prophet, his companions and successors. It was a new trend in the development of Islamic law, which received a lot of hostility from the defendants of ra'y. It was a revival of the "idea of sunna, precedent and normative custom... The Arabs were, and are, bound by tradition and precedent. Whatever was customary was right and proper; whatever the forefathers had done deserved to be imitated... The idea of sunna presented a formidable obstacle to every innovation, and in order to discredit anything it was, and still is, enough to call it an innovation" (Schaht, "An Introduction to Islamic Law", 1964). In this way the Arab mentality expressed itself in application to new conditions.
In claiming authority for the traditions, local differences expressed themselves again: Medinese used 'Umar as an original source, Kufans - Ibn Mas'ud. Later, traditions from the Prophet were used by both, because they received the most weight, his judicial authority being unquestionable, because he was believed to be directly guided by God. As the traditions were being collected, a lot of fabrication took place. The earlier scholars, like Malik used hadith to support their views without careful study of its authenticity. Later isnad, a chain of transmitters, became considered a criteria for the truthfulness of a hadith. From this time on, there came a new wave of lawyers, who reconciled adherence to traditions with the existing doctrines in a variety of ways. For example, a hadith which stated: "If a woman marries herself without a guardian, her marriage is null and void." was interpreted to apply to minor females only by the Kufan school in order to preserve their ruling on ability of a woman to contract her marriage. In spite of considering traditions to be bounding, both schools accepted means of overriding a particular tradition: Kufans used juristic preference, istihsan, as such means, in line with freedom of opinion in Kufa, Medinese recognised ijma, consensus of Medina, reflecting their adherence to old practices.Sometimes both schools consider a custom to take precedence over a tradition. Example of this is their rejection of a tradition from the Prophet that if two parties have agreed a sale, they can only break the agreement before they have separated. Malik declares: "We have no fixed limit and no established practice for that". All too often traditions from the Prophet did not coincide with the practice, "So the traditions remained neither discredited [in principle] nor adopted in practice, and actions were ruled by other traditions which were accompanied by practice" (Schacht, "Origins of Muhammadan Jurisprudence", 1954)
Legal doctrines of both Kufan and Medinan schools of law, with all their peculiarities, owing to the customs of their localities, remained valid until the present day, as Hanafi and Maliki schools respectively, by the names of their founders.
Norman Calder sees as an important institution of Bedouin origins the 'aqila, "a social group whose sole function is to provide compensation on behalf of its members in cases of non-deliberate injury or killing." ("Studies in early Muslim Jurisprudence", 1993). In his view, both Hanafi and Maliki schools of law refer primarily to the city life, and 'aqila refers to the quarters of Muslim cities, which usually corresponded to the tribal structure. By the time of the schools of law the blood ties would be diluted by assimilation and various types of affiliation to the group. Significantly, the converts to Islam were required either to join an existing 'aqila or, if there was a group conversion, form a new one. 'Aqilas were registered in the divan and dhimmis had their own 'aqilas. But these groups had no connection with the family relationships, while for the Bedouins 'aqila was a tribe. Further Calder proposes that Muslims did not derive 'aqila from the ancient tribal system, but rather acquired it from the sedentary population of their conquered lands. Whatever is its actual origin, it is an important example of a pre-existing practice being incorporated in Islamic law.
To conclude, I would like to quote Layish and Shmueli's view of the sources of Islamic Law, because I agree with it, although it does extend the time scale beyond the early cenyuries of Islam. "...It seems to us that the documentary findings confirm the assumption of an Arab customary source of Islamic Law. This conclusion may be arrived at by examining legal terms and concepts in daily use among Judean Desert Bedouin which, though occurring also in Islam, have an original customary connotation, materially different from an Islamic one". ("Custom and Sharia in a Bedouin Family", BSOAS, 1979).
I believe, very little of what was to become Islamic Law actually came as novelty, brought by revelation. I am sure, very often rulings from the Quran or Muhammad's decisions only confirmed existing practices. Even the rulings in favour of women, usually considered a great advance, partly only adjusted legal system to reality. Actions of women in those times as they are transmitted by hadiths and poetry do not give an impression of them being humble subdued beings (Primary example can be behaviour of the Prophet's wife Khadija, one other example - the case when a woman offered herself in marriage to the prophet, something a woman of Islamic times would be unlikely to dare). The Law does not always express the real situation: Soviet Constitution of 1936 was the most advanced in terms of human rights.
On the other hand, attitudes with which people are brought up do condition their mentality. A lot of material from the sunna cuts down on the tolerance and liberty expressed in the Quran. Even the abrogation of one Quranic verse by another is always bent towards a less humanistic approach. Verses preaching patience to unbelievers (K.2:109; K.6:106, etc.) were thought to be abrogated by the so-called "sword-verse" (K.9:5): "So kill the mushriks wherever you find them" (J. Burton, "The Sources of Islamic Law. Islamic Theories of Abrogation", 1990). The militant Arab society could not comprehend patience to the opponents. Of course, a scholar studying, for example, a hadith on certain subject would find more authentic and easier explainable a hadith which coincides with his world view, or if something visibly contradicts his assumptions, he would reinterpret it in a more suitable way. I already mentioned an example of the Hanafi school bending the hadith about marriage contracted by a woman, not her guardian, so that it would coincide with their views.
The true sources of Islamic Law, I think, are the Quranic legislation plus attributed to Islam Arab customs which were practised in Medina, as they both were adjusted to the life of the Middle Eastern societies in the early medieval time.
And then, even now Islam did not overcome popular practices in any area of Muslim world. Everywhere there are some strictly kept traditions which are viewed as part of being Muslims, but in fact they contradict Islamic laws. In India it is payment of dowry by a bride's parents, or paying it to her father in most other countries. In Caucasus and Yugoslavia it is blood vengeance between families, even in cases of accidental killing. Only this summer I did a study of Islam in a Bangladeshi village and found the whole set of Hindu customs attributed to Islam, like forbidding remarriage of widows. Examples are endless, they just show that religion cannot provide more than a set of basic beliefs and practices, and, most importantly, an identity.