CLI - Islamic Law

Question 1

What factors influenced the development of Islamic law a2 Ira Lapidus?

Answer 1

• Quran is seen as the final revelation of the Truth
  
  • Informed by Muhammad’s direct responses to concrete circumstances as a leader
  • Its unique beauty is taken as a miracle itself

Question 2

What’s Hadith?

Answer 2

• Hadith are considered prophet’s own utterances on ritual, moral, and spiritual matters

Question 3

What new family and gender norms were in the Quaran?

Answer 3

o Patriarchal, multigenerational households, property regulated by customs,

o Marriage arranged by heads of families, qur’anic rules vs. incest, divorce possible

• Women and children treated as individuals not property – An improvement!!
  
  • Women respected and given privacy, modesty, and treated humanely
  • Women allowed to own property and could inherit up to a quarter of husband’s estate and retain the bridal gift in divorce

Question 4

What social norms around violence did the Quaran introduce?

Answer 4

o Group responsible for defending its members and making restitution in case of crime committed by a member

§ Quran prioritized monetary compensation over blood feud

§ Blood feud could only be perpetrated against the offender not any male kin

· Members did not need to fear that indiscretion by one member would destroy all

Question 5

What ethnical norms around business transaction were in the Quaran?

Answer 5

o Ethical norms for business transactions: honor contract, give true witness, not take usury interest

Question 6

What was the Umma and who was important in it?

Answer 6

· Umma (community of believers)

o Fiction that all Muslims live together in a single community

o Under leadership of shaykh – arbitrated based on divine will

o Governed by sunna – led by the example of Prophet rather than tradition

Question 7

How were traditional Arab values vested with Islamic meaning?

Answer 7

· Traditional Arab values were vested with Islamic meanings

o Jahl (passion, ignorance, and thoughtlessness) was reestablished on the basis of hilm (self-control) and ‘aql (rational judgment), based on Islam (submission to Allah)

§ Succeeded at eliminating blood feud tendencies

o New religion reaffirmed Arabian moral tradition through religious concepts of brotherhood and authority and integrated disparate peoples into a new community

Question 8

What was Shari’a Law and what were its substantive categories?

Answer 8

• Promulgated based on the Quran and hadith and was taken to be an extension thereof
  
  • Discursive body of law laced with ethical, moral, and theological precepts
  • Three substantive categories
    
    • Cibadat (ritual regulations)
    • mrlamalat (rules of social relations);
    • imama (theory of collective organization)
  • All non-Islamic law were reconciled with its principles

Question 9

What caused tension between followers of the Hadith and Islamic law?

Answer 9

• Legal-minded believed that custom could be integrated into law at discretion
• Hadith-minded thought that the sacred texts were the only legitimate sources of law
• Eventually Hadith-minded won out

Question 10

What were sources of law for the legal minded?

Answer 10

• Sorta like living constitutionalist/pragmatists
• Source of law for the legal minded was the Ijma (consensus), qiyas (analogy), r’ay (reason), Ijtihad (personal reasoning)
  
  • Qiyas: “is a banana like a pomegranate?” – “yeah, same rules apply”
  • Ijtihad: Great jurists did this – tried to find particular answers through reason as applied to religious text
    
    • The “Gates to Ijtahad closed” – god no longer inspired reasoned individuals to find new divine rules
    • Cut off possibility for tradition to continue to evolve
  • R’ay – practical approach to god

Question 11

After Hadith-minded won out, how did Hadith sayings translate into law?

Answer 11

• Jurist al-Shafri’i founded a modus vivendi accepting Hadiths as overriding but only the ijma or agreement between qualified scholars could decide which Hadith sayings were valid

Question 12

What were the Ulama and what did they do?

Answer 12

• Ulama = community of religious scholars
  
  • Tried to figure out what the law was through religious learning
  • They are not part of the state—their source is society, not the state; not authority to rule

Question 13

What are Madhab?

Answer 13

• Madhab = schools of Islamic law
  
  • Named for their founders
  • Schools are seen as exclusive: you cannot pick and choose rules from within them
  • Major cities had all the different schools
    
    • They worship together—just follow different laws

Question 14

How did the early Islamic empire (very diverse) deal with Pluralism?

Answer 14

• Communal groups were allowed to administer their own law
• Jews and Christians were tolerated minorities because monotheist and not “idol worshippers” – They were considered “people of the book”
• Kadi jurisdiction was fluid – jurisdiction was personal not territorial
  
  • BECAUSE different groups had different rules
• Islamic law springing from this environment was known for its relative equality
  
  • C.f. The Hierarchy of Imperial Chinese Law

Question 15

What was the role of morals in Islamic society?

Answer 15

• Integration of religious norms with other norms meant that everything was moral
  
  • Behavior fell into a whole range of normative suggestions
    
    • How to act in marketplace, etc. was all regulated by religious principles
    • Pervasiveness of moral norms similar to Li in Imperial China
  • In this way, law—like religion—was imbedded in society

Question 16

Kadi vs Mufti

Answer 16

• Kadi were judges appointed by the Sultan
  
  • Qualifications: male, learned, not blind lol
  • Also had administrative and representative duties in the community
• Muftis were Islamic scholars that gave their interpretation of the law and determined the applicable legal rules in a fatwa which the qadi then applied
  
  • Either party could appeal to the mufti privately
• Kadi-Mufti boundary was also the boundary between the state and religion
  
  • Both were part of the Ulama (religious scholars)

Question 17

How did appeals and precedent function in Islamic law?

Answer 17

• No appeals process nor requirement of consistency (precedent)
  
  • Fatwas tended to stay within the bounds of established literature, so effectively there was sorta precedent
  • New judges could reopen old cases, but only correct mistakes of law
  • Sisya courts could operate as an appeal

Question 18

What role did parties play in litigation in Islamic law?

Answer 18

• Judge decides who is the P and who is the D
  
  • P is the one who hopes to change “expected” state of affairs and holds the whole burden of proof
• Parties must be directly affected by the case but may appoint a representative, wakil to meet for them in court if they are indisposed

Question 19

What were the rules of evidence in Islamic law?

Answer 19

• Really strict rules of evidence
  
  • Act only proven if two morally upright independent witnesses (often excludes police)
  • Verdict based on three types of evidence
    
    • Confession
    • Testimony
      
      • Shahid – court appointed witness whose testimony was valued because of their upright nature
    • Oaths
  • Best evidence was a confession like Imperial China (but for different reasons) – Lying before God makes lies less likely (internalized harm)

Question 20

What methods to weigh evidence were used in Islamic law and how did a trial end?

Answer 20

• Weighing of evidence
  
  • Three methods:
    
    • Unify: make it so all evidence is true
    • Decide which statement is most probably true
    • Ignore both statements
• Winning side is asked to swear an oath at end of trial to the verity of their version of events, if they do so, then they win

Question 21

What were the two types of courts in the Islamic world?

Answer 21

• Siyasa courts were those that settled disputes where Sharia itself did not provide a workable solution
  
  • Could serve sorta like an appeal
  • Used because very hard to establish evidence in Sharia courts
  • The purpose of these courts was to give power to the state over the law, since Qadis operated fairly independently

Question 22

What were the two main types of state court in Islamic law?

Answer 22

• Two main types of courts:
  
  • Mazalim (sultan’s court)
    
    • Mostly administrative law
    • Mazalim is free from most limitation of Sharia courts
      
      • Need not hear both parties, no evidentiary burdens, etc.
    • Mazalim court still need be inspired by Sharia even if it doesn’t follow its letter
  • Shurta (police courts)
    
    • Pretty much had jurisdiction over all the problems that the Sultan cared about
    • Operated like a criminal court – only dished out punishment
    • Could compel confession by torture – like Imperial China
    • Main operation: Social Control and Dispute Resolition

Question 23

Sharia vs. Sisyana

Answer 23

• Private cases between two equal parties tended to go to the Sharia court
• If no one wanted to raise a case, the police would do so in the shurta court
• Only the qadi could handle crimes against god in theory—not really in reality
• Real difference was their respective relation to political power
  
  • Sharia enjoyed greater autonomy from the sultan

Question 24

What are drawbacks of the Islamic Inheritance System?

Answer 24

• Quran restricts inheritance to 1/3 of an estate with the remainder going to one’s children, spouses, siblings, or parents
  
  • Subordinated personal preferences to communal needs
  • Quran strengthened inheritance rights for women (1/2 of male’s inheritance)
  • Little intergenerational wealth, no aristocracy developed

Question 25

Measures to limit asset fragmentation

Answer 25

• Property fragmentation causes efficiency losses and limits the tax base
  
  • Worse economies of scale
• Classified most arable land as state property to limit fragmentation and dished out tenancy rights in exchange for taxes
  
  • Land could not be partitioned so they remained viable units of production

Question 26

Informal measures to limit asset fragmentation

Answer 26

• Marriage between heirs, premortem gifts, side payments for surrender of heir rights, restrain division of estate until long after death (taking advantage of quran’s imprecision in timing), not give women their due

Question 27

How did Islam get something like a corporation?

Answer 27

• First joint-stock company in Ottoman empire was a transportation company owned mostly by the Sultan and high-ranking officials
  
  • Its key contribution was tradable shares
  • However, it was unincorporated, so it lacked entity shielding
    
    • A single owner’s creditors could force the entire company to liquidate
    • This makes it more difficult to raise capital for greater risk of dissolution
    • The corporation did not arise in Muslim society because no Quranic reference to collective economic entities that could inspire a justified cultural borrowing of the corporation

Question 28

What’s the Islamic version of a corporation?

Answer 28

• Waqf was kind of a trust that financed public goods w/o state involvement
  
  • Like a corporation, it operates over long time horizons so it can justify large start-up costs
  • Established by an individual owner of immovable property to supply in perpetuity its legitimate function
    
    • Its legitimate function was deeded and enforced by courts—founder couldn’t even change it
    • Deed stipulated the services to be performed and the employees to be hired down to the minute details

Question 29

What was a benefit of the Islamic version of corporations?

Answer 29

• Helped grapple with the efficiency losses that result from inheritance deficiencies by appointing one’s family members to salaried positions

Question 30

Issues with the Islamic version of corporations?

Answer 30

• Inflexibility – details of a waqf could only be changed once and then must be static in perpetuity
  
  • This caused the region’s lack of intellectual prominence after the establishment of universities as trusts in the west because Waqf’s lacked the flexibility to adapt the curriculum
  • Could not make the switch to being for-profit—had to be a non-profit supplier of social services in perpetuity

Question 31

consequences of move from Arab to Islamic styles of inheritance

Answer 31

• Movements from Arab to Islamic styles of inheritance invoked new forms of social solidarity and political consciousness since more family members stood to inherit
  
  • Shifted focus from agnatic (male-lineage) tribe towards the nuclear family
  • New political identity around shared religious faith and state structure powerful enough to carry the message of Islam through the region
• Islamic inheritance was the first time in which women were entitled to a share in inheritance

Question 32

Abdul Jabbar v. M. Mohamed Abubacker (High Ct. of Singapore) 1940

Answer 32

Rule: Mohammedan = sect of the decedent, so estate regulated by its law

Issue: Whether a bequest to heirs was valid if heirs are not all in agreement on it.

Reasoning:

• Clause 2 bequeathed money to daughters and brother
  
  • Mohammedan law requires that heirs can only take benefit if all other heirs consent, since there is no consent, this clause is invalid
    
    • One’s entitlement to inheritance is a fundamental right under Mohammedan law
    • They can only give up this right with affirmative consent
• Clause 4 bequeathed his business first to his wife and two others, then solely to the executor if he marries the decedent’s daughter
  
  • The other heirs did not consent to wife owning part of business, so void
  • The 2^nd condition that he marry the daughter is void because of public policy since the dead should only have limited control on the behavior of the living
  • Executor receives full business immediately
• Executor is not an heir, so he cannot receive more than 1/3 of testator’s property
  
  • Business must be valued – if less than 1/3 of estate, executor gets it all; if more than 1/3 executor pays the difference and attains full business

Question 33

Re Mutchilim Alias Ashrin, Deceased (1960)

Answer 33

Decedent died without relation other than wife

• Issue: Is wife entitled to only ¼ or entire property?
• Rule: Deceased was part of the Shafi’i school, so that law applies
  
  • Rule of return: Remainder of inheritance not rightly claimed escheats to the state unless heirs, other than husband or wife, demand the remainder be distributed among the sharers in proportion to their fraction relative to each other
    
    • Used when the sharer’s total is less than 1
• Neither husband nor wife of deceased is entitled to succeed to the residue of the property
  
  • No other books on Muslim law offer a contradictory rule
  • So, wife here is not entitled to the remainder; it escheats to the state

Question 34

Categories of Sunni heirs

Answer 34

• (1) Sharers = heirs named in Quran as entitled to a fixed fractional share
  
  • AKA “Qur’anic heirs”
• (2) Residuaries = asaba heirs = heirs that are related through male and thus tribal lineage
  
  • This is residual of the customary Arab practice predating Islam
  • They take what is left after sharers get their predetermined portions
• Distant kindred = those related through female lineage or women within male lineage
  
  • Only applies when there are no residuaries