Islamic Law and Culture, 1600-1840

By Haim Gerber | Go to book overview

CHAPTER ONE
THE HISTORICAL BACKGROUND

The purpose of this chapter is to provide some historical context for later discussion. There are three subjects that I wish in particular to underscore, one of them being the development of Islamic law as a jurists' law, which I consider crucial to a study of the relations between Islamic law and the state in our period. Another is a brief account of the main personalities to appear in this book—jurists who mark the entire stretch of Islamic law. One aim of this section of the discussion is to bring out our finding that, unlike Western Orientalists, these muftis did not consider the post-classical period as devoid of intellectual vigor and importance, and many of their most frequent sources are from this period. And the third is the situating of the legal material within the politics of the period, in order to try and discover whether there was any effect on the legal field.

Islamic law is a typical jurists' law: no political authority ever discussed the issue of its constitution and no such authority decided anything about its creation or inauguration. It developed solely through the work of individual experts, and was accepted by the wider community because of the individual standing of these experts. The initial phase was the Muslim community headed by the Prophet Muḥammad in the Ḥijaz. There was no formal legislation; the law was God's word delivered to the Prophet via the Qur'an as well his own common sense in mediating and judging among his followers, acts that were considered an extension of his prophetic message. It was in this way that Islamic law, the Shariʿa, came to be considered God given and hence sacred, though clearly, a great many of Muḥammad's common sense decisions were derived from the customary law of Arabia.

This basic sacredness of Islamic law is probably the best explanation why no subsequent ruler dared venture into the area of the law. From the day of Muḥammad's death the law was in essence interpretation of his law, naturally becoming the work of experts, first those who could recount sayings of the Prophet, which now became the second most important source of law, and secondly of

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