1911 Encyclopædia Britannica/Mahommedan Law

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MAHOMMEDAN INSTITUTIONS. Of all the institutions of Islam the caliphate is the oldest, the most fundamental, and in essence the most enduring. For its history see CALIPHATE; the present subject is its origin and nature. Mahomet enjoyed absolute rule over his people as a divinely inspired and guided prophet. He led the public prayers; he acted as judge; he ruled. If he consulted with others or paid attention to public feeling or local usage, it was as a matter of policy; the ultimate decision lay with himself. He was the state. On his death a leader was put in his place of similar authority, though without the divine prophetic guidance. He was called the “ successor ” (khalifa, caliph) of the Prophet, later also the amir-al-mu'minin, commander of the faithful, and was elected by the The Call-Moslems, just as the Arab tribes had always elected Plwfvtheir chiefs. He was thus an absolute ruler, but was democratically elected; and such is the essence of the caliphate among Sunnite Moslems to this day. For them it has been a matter of agreement (see MAHOMMEDAN LAW) from the earliest times that the Moslem community must appoint such a leader (see IMAM). The Shi'ites, on the other hand, hold that the appointment lies with God, and that God always has appointed, though his appointment may not always have been known and accepted. Their position may be called a legitimise one. Some few heretical sects have held that the necessity of a leader was based on reason, not on the agreement of the community. But, for all, the rule of the leader thus appointed is absolute, and all authority is delegated from him and, in theory, can be resumed by him at any time. lust as God can require unreasoning obedience from his creatures (his “ slaves ” in Arabic), so can the caliph, his representative on earth.

But Abu Bekr, the first caliph, nominated his successor, Omar, and that nomination was accepted and confirmed by the people. So a second precedent was fixed, which was again carried a step farther, when Moawiya I., the first Omayyad caliph, nominated his son, Yazid I., as his successor, and caused an oath of allegiance to be taken to him. The hereditary principle was thus introduced, though some relics of the form of election persisted and still persist. The true election possible in the early days of the small community at Medina became first a formal acceptance by the populace of the capital; then an assertion, by the palace guard, of their power; and now, in the investiture of the sultans of the Ottoman Turks, who claim the caliphate, a formal ceremony by the 'ulema (q.v.) of Constanti-110ple. The Ottoman claim is based on an asserted nomination by the last Abbasid, who died in exile in Egypt in 1538, of the Ottoman sultan, Suleiman the Great, as his successor. Such a nomination in itself was a perfectly legal act, but in this case had a fatal Haw. It is an absolute condition, laid down in tradition, that the caliph must be of the tribe of Koreish (Quraish), that of the Prophet.

The duties of this democratically elected autocrat are, in theory, generally stated as follows. He shall enforce legal decisions and maintain the divinely revealed restrictive ordinances; guard the frontiers and equip armies; receive the alms; put down robberies, thieving, highwaymen; maintain the Friday services and the festivals; decide disputes and receive evidence bearing on legal claims; marry minors, male and female, who have no guardians; divide booty. He must be a free, male, adult Moslem; must have administrative ability; must be an effective governor and do justice to the wronged. So long as he fulfils these conditions he is to be absolutely obeyed; private immorality or even tyranny are not grounds for deposing him. This is a position reached by Islam practically. But a caliph who openly denied the faith would be as impossible as an unbelieving pope. The caliph, therefore, is the highest executive officer of a system assumed to be definite and fixed. He, in a word, administers Islam; and the content of Islam is determined by the agreement of the Moslem people, expressed immediately through the 'ulema, and ultimately, if indirectly and half consciously, by the people. To depose him a fatfwa (see MUFTI) would be required-in Turkey from the Sheikh-ul-Islam-that he had violated some essential of the Moslem faith, and no longer fulfilled the conditions of a caliph.

But it was impossible for the caliph personally to administer the affairs of the empire, and by degrees the supreme office was gradually put into commission, until the caliph himself The became a mere figurehead, and yamshed into the sacred mW5ns seclusion of his palace. The history of the creation of ° government bureaus (diwans, ' see DIVAN) must therefore now be sketched. The first need which appeared was that of a means of regulating and administering the system of taxation and the revenues of the state. Immense sums flowed into Medina from the Arab conquests; the surplus, after the requirements of the state were met, was distributed among the believers. All Moslems had a right to a certain share of this! which was regarded as booty. Omar, the second caliph, regulated this distribution and also the system of taxation, and the result was the first divan and the constitution of Omar, looked back to now by all Sunnite Moslems as an ideal. The sources of revenue were (1) the poor-rate (zakzit), a tithe paid by every Moslem; (11) the fifth of all booty; (iii) the poll-tax (jizya) on non-Moslems; and (iv) the landtax (kharéj) also on non-Moslems. Thus the constitution determined the position of all non-Moslems in a Moslem state. The ideal was that the Moslems should be kept apart as a superior, fighting caste, and that the non-Moslems should support them (cf. CALIPHATE, B. § 8, on the reign of Omar II.). The Moslems, therefore, were forbidden to acquire land in conquered countries. The non-Moslems must retain their lands, cultivate them and pay the land-tax (the Arabic word is also used of revenue from the work of a slave) and the poll-tax (the Arabic word means also “ransom ”), and give contributions in kind to support the local Moslem garrisons which were massed in great camp-cities at strategic points. If a non-Moslem embraced Islam he entered the ruling caste; his land was distributed among his non-Moslem fellows, and he no longer paid the land-tax but rather received support from the public funds. The amount of these pensions varied with the standing of the pensioner from 10,000 dirhems (a dirhem equalled about a franc) to the widows and relations of the Prophet down to 300. This bureau had, therefore, not only to keep the books of the state, but also to maintain a list of all Moslems, classified genealogically and socially. Its registers were kept by Greeks, Coplts and Persians; the Arabs, it may be said in general, adopted the method of administration which they found in the captured countries and drew upon the trained services of their inhabitants. Such a system led naturally to wholesale conversions to Islam and the consequent decline in revenue, combined with large donations of lands by Othman, the third caliph, to his own family, gradually broke it down. The first patriarchal period of conquest, unearned wealth and the simple life—called by Moslems the period of the “ four rightly guided caliphs, " and very happily by Sachau, ein monchisrhes Imperium-passed rapidly into the genuinely Arab empire of the Omayyads, with whom came an immediate development of organization in the state. The constructive genius in this was Moawiya, the first Omayyad caliph. Under him the old simplicity vanished. A splendid and ceremonious court was maintained at Damascus. A chamberlain kept the door; a bodyguard surrounded the caliph, and even in the mosque the caliph, warned by the-murder of Othman and of Ali, prayed in a railed-off enclosure. The beginning of the seclusion of the caliph had come, and he no longer walked familiarly among his fellow Moslems. This seclusion increased still further when the administration of the state passed by delegation into other hands, and the caliph himself became a sacro-Sanct figure-head, as in the case of the later Abbasids; when theories of semi-divine nature and of theocratic rule appeared, as in the case of the Fatimites; and finally when all the elaborate court ritual of Byzantium was inherited by the Ottoman sultans. But Moawiya I. was still a very direct and personal ruler. He developed a post-system for the carrying of government dispatches by relays, and thus received secret information from and kept control of the most distant provinces. He established a sealing bureau by which state papers were secured against change. He dealt arbitrarily with the revenues of the state and the pensions of the Moslems. Governors of provinces were given a much freer hand, and were required to turn over to the central treasury their surplus revenue only. As they were either conquerors or direct successors of conquerors they had an essentially military government, and were really semi-independent rulers, unhampered except by direct action of the caliph, acting on information sent by the postmaster, who was his local spy. Being thus the heads of armies of occupation, they were not necessarily charged with the control of religious ritual and of justice. These, like every other function, inhered in the office of the caliph and he generally appointed in each province independent cadis over the courts and imams to be in charge of religious services. Yet the governor was sometimes permitted to hold these two other offices (see CAD1; IMAM). Further administrative developments came with the Abbasids. They created a new city, Bagdad, between the Tigris and the Euphrates, where the three races, Syrian, Arab and Persian, met and sought with Bagdad as a capital to consolidate the empire. The Arab empire, it is true, had passed away with the Omayyads; yet there might be a chance to create a world-empire of all the Moslem peoples. But not even the genius and administrative skill of the early Abbasids could hold together that unwieldy mass. The semi-independent provinces soon became fully independent, or at most acknowledged the caliph as a spiritual head and paid a nominal tribute. His name might stand on the coinage and prayers be offered for him in the Friday service, the two signs of sovereignty to this day in Islam. With this crumbling of the empire went a more elaborate organization; bureaus took the place of principles and of the energy of individual rulers. As the system of Moslem law was built on that of the Roman codes, so was the machinery of administration on that of Persia. And with the Abbasids the chance of the Persians had come. Abu 'l-Abbas, the first Abbasid caliph, was the first to appoint a vizier (wazir, “ helper, " so Aaron is The wazir to Moses in the Koran), a confidential minister Viliefffeto advise him and come between him and the people. Advisers the caliphs had had before; but not a definite adviser with this name. He must, We are told, have a strain of the ruler in him and a strain of the people to be able to work with both. He must know how to be acceptable; fidelity and truthfulness are his capital; sagacity, firmness, generosity, clemency, dignity, 'effectiveness of speech are essential. It is plain that the vizier became as important as the caliph. But Abu 'l-Abbas was fortunate in early securing as his vizier the grandfather of the house of the Barmecides (q.'v.). On this Persian family the fortunes of the Abbasids hung, and it secured for them and for Islam a short golden age, like that of the Antonines, until the jealous madness of Harun al-Rashid cast them down. Thereafter the vizier ate had many vicissitudes. Technically a vizier could be either limited or unlimited. The limited vizier had no initiative; he carried out the commands of the caliph. The unlimited vizier, often afterwards called the grand vizier, exercised full authority and was the aller ego of the caliph, to whom he was required only to report. Naturally the formal distinction is a later theorizing of history; for a weak ruler his vizier became absolute, for a strong ruler his vizier remained subordinate. Here, as with regard to all Moslem institutions, a marked distinction must be made between the historic facts and the speculative edifices raised by constitutional theorize rs. Compare especially MAHOMMEDAN LAW. Until the time of Radi (934-940) the vizier ate thus fluctuated in importance. In that caliphate the vizier lost all authority, and in his place came the amir al-omard -equivalent to the major domus of the Franks-the head of the Turkish bodyguard, in terror of whom the caliph now stood. When in 94 5 the Buyids captured Bagdad and the caliph became a purely spiritual sovereign, they took the title “ vizier ” for their own chief minister, and the caliphs retained only a secretary (see CALIPHATE, C. § 22). Under the Seljuks, however, they regained their viziers and some real authority. Elsewhere, also the vizier ate had its vicissitudes. Under the Mamelukes the vizier fell to be merely the court purveyor. Under the Omayyads of Spain the title was given to several responsible officers of the state, but their chief was called hzijib, chamberlain. Under the Almohades the Chamberlain was called vizier. In the modern Turkish empire the grand vizier (called generally, vadr A'gam) is, the sultan's representative in secular matters, and nominally stands between the sovereign. and all the other officials. He is the president of the council of ministers, but Abd-ul Hamid II. deprived the office of almost all its importance. Under the early Abbasids the four most important ministers were the chief cadi, the chief of police or head of the life guards, the minister of finance and the postmaster, who was the head of the system of information and espionage which Offfef covered the empire. But at different times the different Mmlsters bureaus varied greatly. Under Motawakkil we find the bureau of taxes and finance; bureau of the crown estates; bureau of state book-keeping; bureau of war, i.e. of hired troops; bureau which kept reckoning and control of the pensions of the clients and slaves of the ruling family; bureau of the post system; bureau of expenditures. But in spite of this elaborate system, no Moslem government has, except sporadically, been highly centralized. Provided the taxes are paid, a large measure of local autonomy has always been enjoyed by the country districts. Under the Abbasids almost the only exception was the necessarily centralized control of the irrigation system of the Tigris and Euphrates. And similarly elsewhere.

In the case of all these offices, we have delegation by the caliph, under necessity, of his too heavy burdens. But one duty of an Oriental ruler he could not so easily lay aside. It had always to be possible for the oppressed to come into his presence and claim 'ustice; he must sit in the gate and judge. Therefore, when the caliph found it necessary to delegate the ordinary administration of justice, he found it also necessary to set up a special court of oppressions, which developed, to a certain extent, into a court of appeals. The first to establish such a separate court was Abdal-malik the Omayyad (685-705), and his example was followed by the more vigorous of the caliphs up to the time of Mohtadi the Abbasid (869-870). If any other than the caliph presided over this court it had to be a man whose dignity, independence and authority commanded respect. He was not bound by strict rules of evidence, method and literal application of law as was the cadi. Rather, he applied a system of equity suited to the absolute source of authority which he represented. As the chief of police, mentioned above, was rather the head of the ca|iph's bodyguard, there was also a police system after our ideas, but more thoroughgoing. The muhtasib had charge in the broadest sense of public order and morals in the streets, and had oversight as to weights, measures and adulterations; but had no right to interfere privately or enter houses save in the clearest and most necessary cases. He had a summary jurisdiction in all minor cases where no trial was necessary; but where witnesses and oaths entered the case must go to the cadi. Slaves and beasts of burden were under his guardianship; he prevented public scandals, such as the sale of wine; he regulated the public conduct of Jews and Christians. In the interest of public morals he had to find suitable husbands for widows and see that they did not marry before the legal time; questions of paternity also he had to investigate. The outdoor costume of the people he could regulate. It should, of course, be remembered that the canon law of Islam covers minutely all sides of life (see MAHOM-MEDAN LAW).

It is impossible in Islam to separate logically from the mass of institutions those which we should call religious, as Islam on all sides is for the Moslem equally religious. But perhaps the following may practically be separated under that rubric. Islam, runs a tradition, is built on five things: testimony that there is no god save Allah, and that Mahomet is the apostle of Allah; prayer; the poor-rate; pilgrimage; fasting. For these see INIAHOMMEDAN RELIGION.

The law and usage of religious foundations in perpetuity (waqf, mortmain) became as important in Islam as monastic endowments in medieval Europe, and such foundations tended similarly to absorb the greater part of the national wealth. It was the only safe way of providing for posterity. A pious foundation could be erected in such a way that either so much from its funds would be paid yearly in perpetuity to the descendants of the erector, or those descendants would be employed as officials of the foundation. /hen it became impossible for the caliph to lead the people personally in prayer in the mosque, he delegated that part of his The lmim duties to another, hence called imam (q.1/.). Naturally, ° then, the appointment of the imam would lie with the supreme ruler. This holds of the daily prayers in the principal mosque (al-masjid al-jcimf) supported by the ruler where the Friday service is held, but in the separate smaller mosques built by each community the community chooses its own imam. With regard to the Friday service, the schools of law disagree as to the necessity of the presence of an imam appointed by the chief ruler. But the imam should certainly make mention of the ruler in his sermon and pray for him. At the occasional prayers, such as those for rain, &c., the presence of an imam appointed by the ruler is not necessary. The imim appoints the muaddhin, the announcer of the hour of prayer from the minaret, and both have a claim on the state treasury. Another office exercised when possible by the cali h, but very frequently delegated to some high dignitary, such as tfie heir to the caliphate or a prince, was the leadership of the pilgrimage caravan to Mecca and back. Sometimes this official, Called amir-al-hajjy was appointed imam as well. He then led all the pilgrimage ceremonies at Mecca. When outside of towns where there was a cadi he exercised also over the caravan the rights of a judge. Mahommedan law (q.'v.) is treated separately. Here, again, as judging is a duty of the caliph, a cadi is the delegate, or, when ap-The Cad, pointed by a vizier or governor, a delegate of his delegate. He examines into disputes brought before him and enforces his judgments, he names administrators of the estates of minors, the insane, &c.; he supervises the 'waqf property of mosques and schools in his district and inspects highways and public buildings; he watches over the execution of wills; he inflicts the due legal penalties for apostasy, neglect of religious duties, refusal to pay taxes, theft, adultery, outrages, murder; he can inflict the penalties of imprisonment, fine, corporal punishment, death; if there is no imam, he can perform his duty, as in fact can anyone who has the requisite knowledge. But it should be noticed that all t his holds only of the un-europeanized Moslem state.

For the existence of an army in Islam, there are two grounds, the holy war (jihad, qw.) against unbelievers without the state Themm and the suppression of rebellion within. Under the y- . f .

ordinance of Omar the entire community was preserved and used as a weapon for the subduing of the world to Islam, and every able-bodied male Moslem was theoretically a fighting man, part of the national militia. This army was divided into corps situated in the conquered lands, as armies of occupation, where they eventually came to form military 4- I 3

colonies in great camp-cities. The occupied countries had to support them, and they were bound to render military service at any time. But as the ideal of Omar broke down before facts the use of mercenary and slave troops finally increased; although there has always continued in Moslem armies acting against unbelievers a proportion of volunteers not paid a fixed wage but subsidized by the state from the poor-rate and alms funds. The generals were appointed by the caliph, and had either unlimited authority to act as his representatives, concluding peace, acting as cadi and imam, distributing booty; or were restricted within limits, e.g. to simple leading of the troops and carrying on military operations. They, in turn, appointed their subordinates; this principle of giving a head full powers and full responsibility was very generally applied in Islam. It was controlled of course by the espionage of the postal system. As war by a Moslem power is essentially sacred war, the regulations of jihad must be considered here. Unbelievers must first be invited to embrace Islam and, if they follow a sacred book and are not idol-worshippers, are given a choice between (zz) becoming Moslems; or (lv) submitting to the Moslems and entering on a treaty with them of protection and tribute; or (0) fighting. If they accept Islam, their lives, families and property are secure, and they form henceforth part of the Moslem community. The ability of Islam to create a common feeling between highly different races is one of its most striking features. If they submit and enter on treaty relations, they pay a poll-tax, for which their personal safety is assured, and assume a definitely inferior status, having no technical citizenship in the state, only the condition of protected clients (dhimmis). If they elect to fight, the door of repentance is open, even when the armies are face to face. But after defeat their lives are forfeit, their families are liable to slavery, and all their goods to seizure. It is open to the sovereign either to put them to death; or to enslave them; or to give them their liberty; or to exchange them for ransom or against Moslem prisoners. The sovereign will choose that which is best for Islam. As for their families and wealth, the sovereign can release them only with consent of the army that has captured them. Apostates must be put to death. Fourfifths of the booty after a battle goes to the conquering army. The technical art of war seems to have been little studied among Moslems; they have treatises on archery but very little upon tactics. Their writers recognize, however, the essential difference between the European and Persian methods of charging in solid lines and holding the ground stubbornly, and the Arab and Berber method of liying attacks and retreats by clouds of cavalry. Therefore, one explained, the custom grew of using a mass of European mercenaries as a fixed nucleus and rallying point. The early Moslem armies, too, had used the solid, unyielding charge, which may have been the secret of their success. For one of the greatest puzzles of history is the cause which changed the erratic, untrustworthy swarms of Arab horsemen with their childish strategy into the ever-victorious legions of the first caliphs. They certainly learned rapidly. Byzantium and Persia taught them the use of military engines and the entrenched camp. Before that they had been, at the best, single knights with mail-shirt, helmet, sword and lance. Bowmen, too, they used, but the principal use of the bow seems to have come with the Turks.

The glory of Moslem education was its university system, which fed the higher learning and did no; serve every-day needs. Its I' al' S ~

§ n1§ "teZh§ iaie'Z'du'Z§ fr0Xei.”§ .SP2235 fféiff .2§§ giiliiie“i5 B““““°"-Islam. Primary teachers were despised as ignorant and foolish. Apparently, if we may trust the many stories of how ignorant men set up for themselves, there was no control of them by the state. Their pupils were young only; they taught the rudiments of reading, Koran, catechism, prayer, writing and arithmetic, but very little of the latter. Technical education was given by the gilds through their apprentice system, teaching mechanical arts and crafts. This was genuine instruction, but was not so regarded; it was looked upon rather as are the mysteries and secrets of operative masonry. It produced artisans of independent character, but not artists. Thus there was no distinction between architect and builder; there was no sculpture; and painting, so far as it went, was like carving, a craft. All Moslem university education, like all Moslem science, revolved round theology. There were, apparently, only two outstanding exceptions to this rule, the academy of Mamun (813-833) at Bagdad, and the hall of wisdom of the Fatimites at Cairo (Ioo4-1171); both of these are explained by their environment. From the earliest times, independent scholars instructed classes in mosques-the common places of meeting for the community and gave their pupils personal certificates. Their subjects were the reading and interpretation of the Koran; the body of traditions from the Prophet; the thence deduced system of theology; the canon law. But the interpretation of the Koran involved grammatical and lexicographical studies of early Arabic, and hence of the early Arabic literature. Theology came to involve metaphysical and logical studies. Canon law required arithmetic and mensuration, practical astronomy, &c. But these last were strictly ancillary; the object of the instruction was primarily to give knowledge of value for the life of the next world, and, secondarily, to turn out theologians and lawyers. Medicine was in lewish and Christian hands; engineering, architecture, &c., with their mathematical bases, were crafts. Then this instruction was gradually subsidized and organized by the state, or endowed by individuals. How early this took place is uncertain. But the individual teacher, with his certificate, remained the object of the student; there was nothing corresponding to our general degrees. Thirdly, educational institutions came to be equipped with scholarships of money or in kind for the students. The first instance of this is generally ascribed to Nishapur (Naisabur) in 1066; but it soon became general in the system and afforded a means of control and centralization. A final, and most important, characteristic was the wide journeying of the students “ in search of knowledge.” Aided by Arabic as the universal language of learning, students journeyed from teacher to teacher, and from Samarkand to the Atlantic, gathering on their way hundreds of personal certificates. Scholars were thus kept in touch all over the Moslem world, and intellectual unity was maintained. To the democratic equality of Islam, in which the slave of to-day may be the prime minister of to-morrow, there is one outstanding exception. The descendants of the

f;y, ds Prophet and of his relatives (the family of Hashim)

formed and form a special class, held in social reverence, and guarded from contamination and injury. These are the soyyids (lords), and genealogical registers of them are carefully preserved. They are of all degrees of wealth and poverty, but are guarded legally from misalliances with persons of ignoble origin or equivocal occupation. Their influence is very great, and in some parts of the Moslem world they have the standing and reverence of saints.

See Von Kremer, Cullurgeschichte des Orients, based largely on Mawardfs Ahkdm, trans. in part by Ostrorog; McG. de Slane's trans. of Ibn Khaldun, Prolégoménes; Lane, Manners and Customs of the Modern Egyptians; R. F. Burton, Pilgrimage to Mekka; Snouck l-lurgronje, Mekka; Hughes, Dictionary of Islam; juynboll, De Mohammedaansche Wet; Macdonald, Development of Muslim Theology, &c. For women in Islam, see HAREM. (D. B. MA.)