Chapter VI: Part 6

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 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 _sayyids_ (lords), and genealogical registers of them are carefully preserved. They are of all degrees of wealth and poverty, but are guarded legally from _mésalliances_ 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, _Culturgeschichte des Orients_, based largely on
Mawardi's _Ahkam_, trans. in part by Ostrorog; McG. de Slane's trans.
of Ibn Khaldun, _Prolégomènes_; Lane, _Manners and Customs of the
Modern Egyptians_; R. F. Burton, _Pilgrimage to Mekka_; Snouck
Hurgronje, _Mekka_; Hughes, _Dictionary of Islam_; Juynboll, _De
Mohammedaansche Wet_; Macdonald, _Development of Muslim Theology_, &c.
For women in Islam, see HAREM. (D. B. Ma.)

MAHOMMEDAN LAW. The legal situation in the Moslem world is of the highest complexity, and can be made intelligible only by tracing its historical development. First came the system (_fiqh_, _sharia_) which takes the place in Islam of canon law in Roman Christendom. It begins with Mahomet sitting as judge over the primitive Moslem community at Medina. He was the Prophet of God, and judged, as he ruled, absolutely; any decision of his was valid. But he found it, in general, advisable and fitting to follow the local law or usage of Medina when the new faith did not require a change. It thus came about that his decisions followed, at one time, the usage of the Arab tribes of Medina; at another, the law respected by the Jewish tribes there--a rabbinic development of the law of Moses, deeply affected by Roman law; at another, the more developed commercial law of Mecca, known to his followers who had fled thence with him; or, finally, his own personal judgment, stated it might be as his own sense of right or as the decision of Allah and even incorporated in the Koran. In his use of these he was an eclectic opportunist, and evidently, except as regards such frequently recurring subjects as inheritance, marriage, &c., had no thought of building up a system or code. At his death he left behind only a few specific prescriptions in the Koran and a mass of recorded decisions of cases that had come before him. He had used himself, in our terms, common law, equity, legislation; to guide his followers he left his legislative enactments and the record of his use of common law. Since his death there has been no new legislation in orthodox Islam.

With the death of Mahomet began the development and codification of Moslem law. It was at first entirely practical. Cases had to be decided, and to decide them there was, first, the Koran; secondly, if nothing _ad rem_ was found in the Koran, there were the decisions of the Prophet; thirdly, if these failed, there was the common law of Medina; and, fourthly, if it, in turn, failed, the common sense of the judge, or equity. A knowledge of the decisions of Mahomet came thus to be of great importance, and records of such decisions were eagerly sought and preserved. But this was simply a part of a much wider movement and tendency. As among primitive peoples in general, custom and usage have always been potent among the Arabs. The ways of the fathers, the old paths, they love to tread. Very early there arose a special reverence for the path and usage (_sunna_) of Mahomet. Whatever he did or said, or left unsaid or undone, and how he did it, has become of the first importance to the pious Moslem, who would act in every way as did the Prophet. There is evidence that for this purpose the immediate companions of Mahomet took notes, either in memory or in writing, of his table talk and wise sayings, just as they took down or learned by heart for their private use the separate fragments of the Koran. His sayings and doings, manners and customs, his answers to questions on religious life and faith, above all his decisions in legal disputes, came to be recorded on odd sheets in private notebooks. This was the beginning of the enormous literature of traditions (_hadith_) in Islam. The collecting and preserving of these, which was at first private, for personal guidance and edification, finally became one of the most powerful weapons of political and theological propaganda, and coloured the whole method and fabric of Moslem thought. All knowledge tended to be expressed in that form, and each element of it to be traced back to, and given in the words of, some master or other through a chain of transmitters. Above all there grew up an enormous mass of evidently forged sayings put into the mouth of Mahomet. At every important political or theological crisis each party would invent and put into circulation a tradition from him, supporting its view. By a study of these flatly opposed "sayings" it is possible to reconstruct the different controversies of Islam in the past, and to discover what each party regarded as the essence of its position.

The first collecting of traditions was for private purposes, and the
first publication dealing with them was legal. This was the Muwatta'
of Malik ibn Anas (d. 795), a _corpus juris_ based partly on
traditions, and a protest in its methods against the too speculative
character of the books of canon law which preceded it. Thereafter came
collections of two different types. The earlier kind was arranged
according to the companions of Mahomet, on whose authority the
traditions were transmitted; after each companion came the traditions
going back to him. The best known example of this kind is the _Musnad_
of Ahmad ibn Hanbal. The other kind, called _Musannaf_ (classified),
contains traditions arranged in chapters according to their subject
matter. That of Bukhari is the most famous, and is arranged to give a
traditional basis for a complete system of canon law; its rubrics are
those of such a system. Another is that of Muslim ibn al-Hajjaj, who
paid less attention to legal aspects and more to minute accuracy.
There are many others of more or less acceptance and canonicity.
Bukhari's book enjoys a reverence only second to that of the Koran.
But in all these publications the primary object was to purify the
mass of traditions of forged accretions and to give to the believer a
sound basis for his knowledge of the usages of the Prophet, whether
for his personal or for public use. These two kinds were a natural
development. In the Moslem community there were from the first
students of tradition proper whose interest lay in collecting, testing
and transmitting, not in combining, systematizing and elucidating;
whose preference was to take a single statement from the Prophet and
apply it to a case, without reasonings or questionings. And there were
students of canon law who were interested rather in the system and
results, and who, while they used traditions, used them only to an end
and insisted on the free application of speculative principles. The
conflict of the future was to be between these traditionalists, on the
one hand, and rationalists, on the other; and the result was to be a
compromise.

With the wide sweep of Moslem conquest another element came into the development. This was Roman law, which the Moslem jurist found at work in the conquered Roman provinces and in the law courts of which they went to school. It is to be remembered that the Arab armies were not devastating hordes; they recognized the need of law and order wherever they went, and it was the policy of their leaders to take over the administrative systems of the countries which they seized. Even the Arabic legal nomenclature shows evident signs of literal translation from Latin, and many Moslem principles can be traced to the Roman codes. One important development was plainly influenced by the liberty involved in the _Responsa prudentium_ of Roman lawyers, and by the broad conception of the law of nature in the Edict of the Praetor. In its earliest stages Moslem law recognized in the judge a liberty of opinion (_ra'y_) which went beyond even that of the _Responsa_ and became plain equity, in the English sense, and one school (the Hanifite) established as a basis the right of preference (_istihsan_) even when the analogy of the code dictated otherwise; while another (the Malikite) used the term _istislah_, "a seeking of (general) benefit" to the community, in a similar situation. But these developments were bitterly contested, and the liberty of opinion was in the end narrowed down to a principle of analogy (_qiyas_), the nearest approach to which in Western law is legal fiction.

It is necessary now to return to the first successors of Mahomet. "For thirty years after my death," he is said to have declared, "my people will tread in my path (_sunna_); thereafter will come kings and princes." This tradition crystallizes the later feeling of Islam. The first thirty years were a golden age; the centre of the state was the Prophet's own city of Medina; the conditions of the state continued in close conformity to those of his own time. The study of tradition, i.e. of his usage, went hand in hand with the study of law. They were vital functions of the state, and it encouraged both.

Then came the great _débâcle_. The _ancien régime_, a semi-monkish, theocratic empire, went down, and the Omayyad dynasty, kings and princes of the old Arab type, took its place (see CALIPHATE, B). The public life of the state was no longer deeply religious; the pious said that it was godless. Under these conditions law was indeed still needed; but it had to be opportunist. Its development went on, but became speculative. The study of tradition was now private, and its students were more and more the personally pious. There were, thus, two results. On the one hand, the framers of systems of canon law--as it now was--no longer lived in contact with reality; hypothetical and ideal structures were reared which could never stand the touch of the practical law-court. And on another, traditions and law, even this hypothetical law, came to take separate roads. The interest of the students of tradition became the gathering of traditions for their own sake, going no farther than a striving to regulate each detail of life by some specific, concrete, prophetic dictum. They had no use for systems that went beyond the mere registering of these dicta. The feeling also became widespread that any system of government which did not simply reproduce the patriarchal form of Medina was of the world and the devil--a thing with which no religious man could have aught to do. At every turn he would have to peril his soul.

Here we must place the transition of this law with which we have hitherto dealt from being the law of the land to being in essence a variety of canon law. It was always broader than any western secular law. It regulated all the aspects of life--duty to God, to one's neighbour, to one's self. It was really a system of duties, ethical, legal, religious. It did not limit itself to defining the forbidden (_haram_); but designated actions also as required (_fard_, _wajib_), recommended (_mandub_, _mustahabb_), indifferent (_ja`iz_, _mubah_), disliked (_makruh_). It played the part of, or rendered necessary, a religious director quite as much as a lawyer. And for a time at Medina it was really the law of the land. But from the Omayyad period on it has held the position of the canon law of the Roman Church in countries that will not recognize it and yet dare not utterly reject it. It governs, in one or other of its four schools, the private lives of all pious Moslems; it regulates some semi-public relationships--e.g. marriage, divorce, inheritance; it compels respect, if not acceptance, from the state; and by its ideal standard the world, filled with righteousness by the Mahdi, will be ruled in the Moslem millennium.

The rise of the Abbasids brought a change, but not a great one. They had promised a return to the old religious attitudes, and the promise was formally kept. But in substance they were as much as the Omayyads, and though the state was outwardly on a pious footing, and the religious sentiment of the people was respected, the old, absolute canon law was not restored. It was made possible for more theologians and lawyers to work with the state, but an irreconcilable party still remained, and the situation was fixed as it is to this day. It is true that the struggle to adapt such a single and detailed system to all the varying conditions, climates and times of the great empire was impossible; but the failure marked the great rent in the supposed unity of Islam between the church and the world, religion and law.

Yet the Abbasids did, in their way, encourage legal studies, and under them processes and results, long pursued in private, became public. Almost within the first century of their dynasty the four legal schools, or rites, were formed and the principles established which survive to this day.

The first school to take definite form was the Hanifite, founded by
Abu Hanifa (d. 767), who left behind him a definite system and many
enthusiastic pupils. He was a man of means, in touch with commercial,
but not with practical legal life, a speculative or philosophical
jurist. Being of non-Arab origin, the usage of Medina had small
interest for him. He therefore used few traditions, and preferred to
go back to the Koran, and extract from it by reasoning the rulings
which fitted his ideas. This he called the use of analogy (_qiyas_);
but, in his hands, it became practically legal fiction, the
application of a law in some sense undreamed by its first imposer. But
he had another, and still freer instrument. The effect of differences
in local conditions had been early observed and admitted in general
terms. Abu Hanifa reduced it to a subjective formula. Under such
conditions he claimed the right of preference (_istihsan_) of a ruling
suited to the local needs, even when the strict analogy indicated
otherwise. This met and meets with vehement protest when formally
stated, but the usage of Islam has practically accepted it. His
system, finally, was not developed through the exigencies of actual
cases, but was worked out as a system of casuistry, though in a good
sense. He tried, that is, to construct a system of rules to answer any
conceivable question. After his death his pupils elaborated it still
further, and accepted public office. The `Abbasids adopted his school,
and threw their influence on its side; its philosophic breadth and
casuistic possibilities evidently commended it to them. Later, the
Ottoman Turks also adopted it, and it may be said to hold now a
leadership among the four legal rites. Its influence has undoubtedly
tended to broaden and humanize Moslem law.

Twenty-eight years after Abu Hanifa, Malik ibn Anas, the founder of
the Malikite school, died at Medina. In many points his situation was
precisely opposite to that of Abu Hanifa, and yet his results were
very similar. He was a working jurist, in practical touch with actual
life; he was in the centre of the tradition of the usage of the
Prophet, in the line, one might say, of the apostolic succession. He,
therefore, used traditions much more generally than did Abu Hanifa,
and when he, under pressure, took refuge in opinion, he certainly felt
that he, under his conditions, had a better right to do so than any
outsider. But two of his principles marked a distinct advance and
showed that he was no mere traditionalist. For one, he laid down the
conception of public advantage (_istislah_); when a rule founded on
even a valid analogy would work a general injury it was to be set
aside; justice must not be overcome by logic. And, for the other, he
laid stress on the conception of the agreement (_ijma`_), an idea
which was to have indefinite importance in the future. When the
surviving companions of the Prophet, after his death, agreed upon any
point as belonging to their store of tradition and experience, their
agreement was accepted as final. In the first instance they agreed
that such had been the statement of the Prophet. That easily passed
over into an agreement that such was the true Moslem view, and finally
into an acceptance of the principle that the Moslem Church, when
unanimous, could formulate truth--practically as in the canon of
Vincent of Lérins, _Quod semper, quod ubique, quod ab omnibus_. But
such a broadly catholic position was still in the future, and for
Malik, juristic agreement meant the agreement of Medina, though there
are signs that he permitted the same latitude to other places also. It
was a way of allowing for local conditions rather than of reaching the
voice of the Church. His law book, the _Muwatta'_, the earliest in our
possession written by the founder of a school, has already been
mentioned. It is a collection of about seventeen hundred traditions of
juristic importance, arranged according to subject, with appended
remarks on the usage of Medina and on his own view of each matter.

So far opinion and local usage had fully held their own, and the
philosophical jurist had been free to work out his system. The
difference between the _istihsan_ of Abu Hanifa and the _istislah_ of
Malik was not great; students attended the lectures of both and
combined their systems. But a reaction now began, and the
traditionalist party finally made itself felt. We have the inevitable
rivalry between the historical-empirical and the
speculative-philosophical schools of jurisprudence, rendered all the
more bitter in that the historical lawyers believed, in this case,
that they were defending a divine institution. There resulted, first,
one of the most important schools, the Shafi`ite; secondly, an
extremely literal school for which ash-Shafi`i did not go far enough,
and which has now vanished; and thirdly, the Hanbalite school, still
surviving in small numbers, more moderately traditional than the last.

The school founded by ash-Shafi`i (d. 820), a pupil of Malik, came
first in order of time. The others were really revolts against the
mildness of his compromise. His characteristics were a broad-minded,
steady grasp of means and ends, a perception of what could and what
could not be done, a willingness to admit all the tried principles in
due balance, and, at one point especially, the insight of genius as to
the possibilities of these principles. He laid great stress on
tradition; a clear, authentic tradition he regarded as no less valid
than the Koran itself. If the tradition was chronologically later than
a Koranic passage and corrected that passage, he followed the
tradition. But in this he was only regulating a fixed tendency. The
Koran may be regarded theoretically as the first of all the sources of
law and theology; practically its clear statements have been
over-ridden in many cases. Most important of all, the principle of
agreement (_ijma`_) came finally with him to its full rights. The
agreement of the Moslem peoples was to be the voice of God. "My
people," said a tradition from Mahomet, "will never agree in an
error." And so, over traditions and over the Koran itself, the
agreement tacitly or explicitly ruled and rules. It stamps as
authoritative that which the other principles lay down. At the head of
each section of a Shafi`ite law book we read, "The basis of this,
before the agreement, is such and such." But with the aid of a
principle of this breadth it was easy to reject the opinion which was
so objectionable to the traditionalist party. In its place he took
analogy (_qiyas_), which, discreetly used, could serve almost the same
purpose. The Koranic passage or the tradition with which an analogy
was suggested should, he taught, be examined to see if there was a
reason clearly stated for the command. If so, that reason would give a
basis for the analogy. Analogy based on the mechanical or external
could not hold.

The four bases thus laid down by ash-Shafi`i--Koran; prophetic usage
as expressed in traditions; analogy; agreement--have come to be
accepted by all existing schools. This applies to all spheres of life,
ethical, social, theological, legal, and it should never be forgotten
that the Koran is only one of the sources for Moslem faith and
conduct.

Few words are needed for the other, reactionary schools. One, now long
extinct, was founded by a certain Da`ud uz-Zahiri, "David the
Literalist," born three or four years before the death of ash-Shafi`i,
and so called because he insisted upon an absolutely literal
interpretation of his texts--Koran or tradition--without account of
context or metaphor. In consequence he had to reject analogy, and
limited agreement to that of the companions of Mahomet; the Church of
Islam was to have no constructive authority. In one point he showed
great sanity of judgment, namely in his rejection of the principle
_jurare in verba magistri_, otherwise regnant in Islam. His school had
long and interesting consequences, mostly theological, but is now
extinct, and never took rank with the others. The Moslem world found
his positions too impossible, and now no one swears to his words. The
other, the Hanbalite school, was founded by the scholars of Ahmad ibn
Hanbal after his death in 885. He himself would never have revolted
against his master, ash-Shafi`i, but it was soon felt that his system,
so far as he had any, was in essential opposition. He had been no
lawyer, but a theologian and a collector and student of traditions.
All his life had been a protest against speculation in divine things.
Where the Koran and traditions were silent, he, too, had been silent.
For this agnostic principle he had witnessed and suffered, and his
standing with the people was that of a saint. Naturally, then, the
last still existent school of traditionalist protest was launched in
his name. It minimizes agreement and analogy, is literal in its
interpretations, and is now by far the smallest of the four surviving
schools. Its external history is that of a testifying and violent
minority.

Other men, such as Tabari, the historian and commentator, have had
dreams that they, too, might join the Four Imams (see IMAM) as
founders of legal rites, but none has succeeded. The Four remain the
ultimate exponents of this canon law, and under the banner of one or
other of them every Moslem must range himself. As there is a principle
of unity in Islam, expressed in the alleged prophetic saying, "My
people will never agree in an error," so there is a principle of
variety, also expressed in an alleged prophetic saying, "The
disagreement of my people is a mercy from God." The four rites may
differ upon many points, yet the adherents of one never dream of
regarding the adherents of the others as outside the Church of Islam;
they are not "dissenters" in the English sense. God is merciful to his
creatures, and gives them so much liberty of choice. Yet in practice
this liberty is not great. The principle of swearing to the words of
the master is a dead hand laid upon Islam. A man's legal rite is
generally settled by the place and other conditions of his birth, and
after he has once accepted a rite, he must, if good and pious, follow
it in all its details. Only the avowed sceptic or the recognized
eccentric can be an eclectic.

The geographical distribution of the rites is roughly as follows:
Moslems in Central Asia and northern India and the Turks everywhere
are Hanifites; in Lower Egypt, Syria, southern India and the Malay
Archipelago they are Shafi`ites; in Upper Egypt and in north Africa,
west of Egypt, they are Malikites; only the Wahhabis (q.v.) in central
Arabia are Hanbalites. But the will of the sovereign has also had a
powerful influence and has frequently dictated the legal, as well as
the theological, affiliations of his subjects. The Turks, for example,
have thrown their weight almost everywhere on the Hanifite side. Their
policy is to appoint only Hanifite judges (see CADI), although for
private and personal questions they appoint and pay Muftis (q.v.) of
the other rites. In other cases, with a population of mixed legal
adherence, the government has been known to appoint judges of
different rites.

The Shi`ite canon law is dealt with separately, but some mention of
two outstanding sects is here in place. The Ibadites (see MAHOMMEDAN
RELIGION: _Sects_) have a system of canon law which in essentials is
of older codification than that of any of the orthodox schools, going
back to Abdallah ibn Ibad himself, of the first century of the Hijra
(Hejira). Its basis is above all the Koran, then a sparing use of
traditions, natural to their early origin, and finally the agreement
of their own learned men, again natural to an extreme dissenting sect,
and it still rules the Ibadite communities at Oman, Zanzibar and the
Mzab in southern Algeria. At all these places they, the last
descendants of the Kharijites, hold severely apart, while the other
Moslems shrink from them as heretics of the worst. Not nearly so far
from ordinary Islam, but still of an extreme self-conscious Puritanism
are the Wahhabis. They are really Hanbalites, but apply the rules of
that school with uncompromising, reforming energy. The doctrine of the
agreement of the Church of Islam they reject; only that of the
immediate companions of Mahomet is valid. The people of Mahomet can
err and has erred; each man must, on his own responsibility, draw his
doctrine from the Koran and the traditions. Here they follow the
Zahirites.

All these schools of law administer a scheme of duties, which, as has already been remarked, comes nearest to the canon law of the Roman Church, and which for centuries has had only a partial connexion with the real legal systems of the Moslem peoples. Among the Wahhabis and Ibadites alone is it the whole of law. Elsewhere, since the Omayyad period, its courts have been in great part pushed aside by others, and its scheme has come to be regarded as an expression of impossible theory, to be realized at best with the coming of the millennium. The causes and methods of this change call now for detailed notice.

As Islam spread beyond the desert and the conditions in which the life of Mahomet and his companions had been cast, it came to regions, climates, customs, where the Arabian usages no longer held. Not only were the prescripts of Medina ill adapted to the new conditions; the new people had legal usages of their own to which they clung and which nothing could make them abandon. It was rather the Moslem leaders who were compelled to abandon their ideas and for the sake of the spread of Islam to accept and incorporate much that was diametrically opposed to the original legislation either of the Koran or of Mahomet's recorded decisions. As in religion the faiths of the conquered peoples were thinly veneered with Moslem phrases, so in law there grew up a customary code (_`adat_) for each country, differing from every other, which often completely obscured and annulled the prescriptions of the canon law. The one was an ideal system, studied and praised by the pious learned; the other was the actual working of law in the courts.

But besides the obstinate adherence of various peoples to their old paths, the will of individual rulers was a determining factor. When these ceased to be saints and students of divine things, and came to be worldly statesmen and opportunists, followers of their own objects and pleasures, no system could hold which set a limit to their authority. The Oriental ruler must rule and judge on his own initiative, and the schools of canon law tended to reduce everything to an academic fixedness. There thus arose a new and specific statute law, emanating from the sovereign. At first he judged in the gate as seemed good in his eyes and as was his right and duty (cf. "court of oppressions"; see MAHOMMEDAN INSTITUTIONS); later, his will was codified as in the Turkish statute law (_qawanin_) derived from various European codes. Thus there has grown up in almost every Moslem country at least two systems of courts, the one administering this canon law, and taking cognisance of private and family affairs, such as marriage, divorce, inheritance, its officials also giving rulings on purely personal religious questions, such as details of the ritual law, the law of oaths and vows, &c.; the other, the true law courts of the land, administering codes based on local custom and the decrees of the local rulers.

A rift almost as important entered the legal life of the Moslem lands on another side. Non-Moslem communities, settled in Moslem territory, have been uniformly permitted to administer and judge themselves according to their own customs and laws. Save when they come into direct contact and conflict with Moslems, they are left to themselves with a contemptuous tolerance. The origin of this attitude in Islam appears to be threefold: (i) The Islam of theory cannot conceive of a mixed state; it takes account, only, of a state containing none but Moslems, and its ideal is that the whole world will, in the end, form such a state. In practice, then, Moslems try to shut their eyes to the existence of non-Moslems in their midst and make no provision for them until compelled. That a non-Moslem should have the same civil position as a Moslem is unthinkable. (ii) This, of course, produces an attitude of extreme contempt. The only citizens are Moslems and all others are to be looked down upon and left to themselves. What they do or think among themselves does not matter; they are outside the ring-fence of Islam. (iii) A different, but equally important, cause is the Moslem indolence. When the Arabs conquered, they knew that they must administer the conquered lands, and they, very wisely, sought help from the machinery which they found in operation. But besides the ordinary organization of the state, they found also various ecclesiastical organizations, Christian and Jewish, and to these they gave over the administration of the non-Moslem sections of the community, making their rabbis and bishops their responsible heads and the links of contact with the Moslem rulers. They, unquestionably, found the same method in use by the Byzantine government; but in Moslem hands it went so far as to make a number of little states (_millet_, _milal_) within the state and effectually to preclude the possibility of ever welding all the inhabitants of the land into one corporate life.

But this indolence, when applied to resident aliens, had consequences still more serious, because external as well as internal. Following the same method of leaving the unbeliever to settle his affairs for himself, the European merchant, living and trading in the East, was put first by usage and finally by treaty under the jurisdiction and control of his own consul. Thus there grew up the extra-territorial law of the capitulations and conventions, by which the sanctity of the person and household of an ambassador is extended to every European. And this in turn, has reacted on the status of the non-Moslem subject races, and has come to be the indirect but chief support on which they lean. Through it, an element has developed which makes it practically impossible for a Moslem state to introduce legal changes even remotely affecting its non-Moslem population, alien or subject, without the consent of the European embassies. Any change may be upset by their refusal to accept it as incompatible with the capitulations and conventions. The embassies have thus, as interpreters of a part, at least, of the constitution, come to hold a position remarkably, if absurdly, like that of the Supreme Court of the United States (see Young, _Corps de droit Ottoman, passim_).

There may be said, then, in short, to be three elements in the legal life of a Moslem state: the sacred and fixed canon law of Islam; the civil law, based on the usages of the different peoples, Moslem and non-Moslem, and on statutes going back to the will of rulers; the international law of the capitulations, with a contractual sanction of its own. The hope for the future in Islam, there can be little doubt, lies in the principle of the agreement of the Moslem people, with its conception of catholic unity, and its ability, through that unity, to make and abrogate laws. As the Moslem peoples advance, their law can, thus, advance with them, and the grasp of the dead hand of the canon law be gradually and legally released.

See I. Goldziher, _Muhammedanische Studien_, I. and II. (Halle a.S.,
1889-1890); _Zahiriten_ (Leipzig, 1884); E. Sachau, _Zur ältesten
Geschichte des muhammedanischen Rechts_ (Vienna Akad., 1870) and
_Muhammedanisches Recht_ (Stuttgart and Berlin, 1897); Snouck
Hurgronje, review of preceding in _Z.D.M.G._ liii. 125 seq. and "Le
droit musulman" (_Rev. de l'hist. des religions_, xxxvii. 1 seq. and
174 seq.); Juynboll, _Handleiding tot de Kennis von de mohammedaansche
Wet_ (Leiden, 1903); Von Kremer, _Culturgeschichte des Orients unter
den Chalifen_, i. 470 seq. (Vienna, 1875-1877); Hughes, _Dictionary of
Islam_, pp. 285 seq. (London, 1896); D. B. Macdonald, _Development of
Muslim Theology_, &c., pp. 65 seq. (New York, 1903); Bukhari, _Les
Traditions islamiques traduites ... par O. Houdas et W. Marcel_
(Paris, 1906); N. B. E. Bailie, _Digest of Moohummadan Law_ (2 vols.,
London, 1875-1887). A good bibliography appeared in the _Bulletin of
the New York Public Library_ for January 1907. (D. B. Ma.)

MAHOMMEDAN RELIGION. The Mahommedan religion is generally known as _Islam_--the name given to it by Mahomet himself--and meaning the resigning or submitting oneself to God. The participle of the same Arabic verb, _Muslim_ (in English usually spelt Moslem), is used for one who professes this religion. The expression "Mahommedan religion" has arisen in the West probably from analogy with "Christian religion," but is not recognized as a proper one by Moslem writers. Islam claims to be a divinely revealed religion given to the world by Mahomet, who was the last of a succession of inspired prophets. Its _doctrine_ and _practices_ are to be found in (i) the Book of God--the Koran--which was sent down from the highest heaven to Gabriel in the lowest, who in turn revealed it in sections to Mahomet; (2) the collections of tradition (_hadith_) containing the sayings and manner of life (_sunna_) of the Prophet; (3) the use of analogy (_qiyas_) as applied to (i) and (2); and (4) the universal consent (_ijma'_) of the believers. The _worship_ of Islam consists in (1) the recital of the creed; (2) the recital of the ordained prayers; (3) the fast during the month of Ramadhan; (4) alms-giving; (5) the _hajj_, the pilgrimage to Mecca. The _theology_ of Islam finds its first public expression among the orthodox in the teaching of al-Ash`ari (d. after 932), but had its real beginning among the sects that arose soon after the death of Mahomet.

Islam is the latest of the so-called world-religions, and as several of the others were practised in Arabia at the time of Mahomet, and the Prophet undoubtedly borrowed some of his doctrines and some of his practices from these, it is necessary to enumerate them and to indicate the extent to which they prevailed in the Arabian world.

_Relations with Other Religions._--The religions practised in Arabia at the time of Mahomet were heathenism, Judaism, Christianity, and Zoroastrianism.

i. _Heathenism_ was the religion of the majority of the Arabs. In the
cities of south Arabia it was a survival from the forms represented in
the Sabaean, Minaean and Himyaritic inscriptions of south Arabia (see
ARABIA: _Antiquities_). The more popular form current among the nomads
is known very imperfectly from the remains of pre-Islamic poetry and
such works as the _Kitab ul-Asnam_ contained in Yaqut's geography,
from Shahrastani's work on the sects, and from the few references in
classical writers. From these we have mostly names of local deities
(cf. J. Wellhausen, _Reste arabischen Heidentums_, 2nd ed., Berlin,
1897) and ancient religious customs, which remained in part after the
introduction of Islam (cf. W. Robertson Smith, _The Religion of the
Semites_, Edinburgh, 1889, and _Kinship and Marriage in Early Arabia_,
Cambridge, 1885). From these sources we learn that Arabian religion
was a nature-worship associated with fetishism. Sun, moon and stars
were worshipped, some tribes being devoted to the worship of special
constellations. Certain stones, wells and trees were regarded as
sacred and as containing a deity. Many (perhaps most) tribes had their
own idols. Hobal was the chief god of the Ka`ba in Mecca with its
sacred stone, but round him were grouped a number of other tribal
idols. It was against this association (_shirk_) of gods that Mahomet
inveighed in his attempt to unify the religion and polity of the
Arabs. But there were features in this heathenism favourable to unity,
and these Mahomet either simply took over into Islam or adapted for
his purpose. The popularity of the Ka`ba in Mecca as a place of resort
for worshippers from all parts of Arabia led Mahomet not only to
institute the _hajj_ as a duty, but also to take over the customs
connected with the heathen worship of these visits, and later to make
Mecca the _qibla_, i.e. the place to which his followers turned when
they prayed. The name of Allah, who seems to have been the god of the
Koreish (cf. D. S. Margoliouth, _Mohammed_, p. 19, London, 1905), was
accepted by Mahomet as the name of the one God, though he abandoned
the corresponding female deity Al-lat.

2. _Judaism_ had long been known in Arabia at the time of the Prophet.
Whether Hebrews settled in Arabia as early as the time of David (cf.
R. Dozy, _Die Israeliten zu Mecca_, Leipzig, 1864), or not, is of
little importance here as Judaism cannot be said to have existed until
the end of the 5th century B.C. The Seleucid persecutions and the
political troubles that ended with the fall of Jerusalem (A.D. 70)
probably sent many Jews to Arabia. In the 5th and 6th centuries the
history of south Arabia and of Nejran is largely that of the strife
between Jews and Christians. In the north-west the Jews possessed
Tema, Khaibar, Yathrib (Medina), Fadak, and other smaller settlements.
In these they lived as self-contained communities, not seeking to
proselytize but working at their trades, especially concerned with
money and jewelry. Mahomet seems to have expected their help in his
proclamation of monotheism, and his first _qibla_ was Jerusalem. It
was only when they refused to accept him as prophet that he turned in
anger against them. They had, however, supplied him with much material
from the Old Testament, and the stories of creation, the patriarchs
and early kings and prophets occur continually in the Koran, told
evidently as they were recited by the common people and with many
mistakes caused by his own misunderstanding.

3. _Christianity_, though later than Judaism, had a sure footing in
Arabia. It had suffered persecution in Nejran and had been supported
in the south by the Abyssinian invasions. The kingdom of Hira was
largely Christian; the same is true of the north Arabian tribes of
Bakr and Taghlib, and east of the Jordan and on the Syrian boundary as
well as in Yemama Christianity had made progress. Pre-Islamic
literature contains many allusions to the teaching and practices of
Christianity. Of the time of its introduction little is known; little
also of the form in which it was taught, save that it came from the
Eastern Church and probably to a large extent through Monophysite and
Nestorian sects. Tradition says that Mahomet heard Christian preaching
at the fair of Ukaz, and he probably heard more when he conducted the
caravans of Khadija. Gospel stories derived apparently from
uncanonical works, such as the Gospel of the Nativity, occur in the
Koran. The asceticism of the monks attracted his admiration. A
mistaken notion of the Trinity was sharply attacked by him. It is
curious that his followers in the earliest times were called by the
heathen Arabs, Sabians (q.v.), this being the name of a semi-Christian
sect. In the time of the Omayyads Christianity led to some of the
earliest theological sects of Islam (see below).

4. _Zoroastrianism_ was known to the Arab tribes in the north-east,
but does not seem to have exercised any influence in Mecca or Medina
except indirectly through Judaism in its angelology. As soon, however,
as the armies of Islam conquered Mesopotamia it began to penetrate the
thought and practices of Islam (see below).

_Sources of Authority._--Islam, as we have said, is founded on: (1) the Koran; (2) the tradition or rather the _sunna_ (manner of life of Mahomet) contained in the tradition (_Hadith_); (3) _ijma`_; the universal agreement; (4) _qiyas_ (analogy).

1. The _Koran_[1] (properly _Qur'an_ from _qara'a_ to collect, or to read, recite) is the copy of an uncreated original preserved by God (see below), sent down from the seventh heaven to Gabriel in the first heaven, and revealed to Mahomet in sections as occasion required. These revelations were recited by the Prophet and in many cases written down at once, though from ii. 100 it would seem that this was not always the case. God is the speaker throughout the revelations. It seems probable that the whole Koran was written in Mahomet's lifetime, but not brought together as a whole or arranged in order.

As it exists now the Koran consists of 114 chapters called _suras_
(from _sura_, a row of bricks in a wall, a degree or step). The first
is the _Fatiha_ (opening), which occupies the place of the Lord's
Prayer in Christianity. The others are arranged generally in order of
length, the longest coming first, the shortest (often the earliest in
date) coming at the end. Certain groups, however, indicated by initial
unvowelled letters, seem to have been kept together from the time of
the Prophet. At the head of each _sura_ is a title, the place of its
origin (Mecca or Medina) and the number of its verses (_ayat_)
together with the formula, "In the name of God the Merciful, the
Compassionate" (except in _sura 9_). For liturgical purposes the whole
book is divided into 60 sections (_ahzab_) or into 30 divisions
(_ajza_), each subdivided into a number of prostrations (_ruk`a_ or
_sajda_). The origin of the collected and written Koran is due to
Omar, who in the caliphate of Abu Bekr pointed out that many
possessors of _suras_ were being slain in the battles of Islam and
their property lost, that there was a danger in this way that much of
the revelation might disappear, and that men were uncertain what was
to be accepted as genuine revelation. Accordingly Zaid ibn Thabit who
had been secretary to Mahomet, was commissioned to collect all he
could find of the revelation. His work seems to have been simply that
of a collector. He seems to have done his work thoroughly and made a
copy of the whole for Abu Bekr. The collection was thus chiefly a
private matter, and this copy passed after Abu Bekr's death into the
hands of Omar, and after his death to Hafsa, daughter of Omar, a widow
of Mahomet. In the caliphate of Othman it was discovered that there
were serious differences between the readings of the Koran possessed
by the Syrian troops and those of the Eastern soldiers, and Othman was
urged to have a copy prepared which should be authoritative for the
Moslem world. He appointed Zaid ibn Thabit and three members of the
tribe of Koreish (Quraish) to do the work. Each of these made a copy
of Abu Bekr's collection, carefully preserving Koreishite forms of
words. How far the text was amended by the help of other copies is
doubtful; in any case the mode of procedure was undoubtedly very
conservative. The four similar manuscripts were sent, one each to
Medina, Cufa (Kufa), Basra and Damascus, and an order was issued that
all differing copies should be destroyed. In spite of the personal
unpopularity of Othman this recension was adopted by the Moslem world
and remains the only standard text. A few variant readings and
differences of order of the _suras_ in the collections of Ubay ibn
Ka`b and of Ibn Mas`ud were, however, known to later commentators. The
only variants after the time of Othman were owing to different
possible ways of pronouncing the consonantal text. These are usually
of little importance for the meaning. As the text is now always
vowelled, variations are found in the vowels of different copies, and
the opinions of seven leading "readers" are regarded as worthy of
respect by commentators (see Th. Nöldeke, _Geschichte des Qorans_, pp.
279 seq., Göttingen, 1860). Various characteristics enable one to
establish with more or less certainty the relative chronological order
of the _suras_ in the Koran, at any rate so far as to place them in
the first or second Meccan period or that of Medina. The form of the
sentences is a guide, for the earliest parts are usually written in
the _saj`_ form (see ARABIA: _Literature_). The expressions used also
help; thus the "O ye people" of the Meccan period is replaced in the
Medina _suras_ by "O ye who believe." The oaths in the first Meccan
period are longer, in the second shorter, and are absent in the
Medinan. In the earliest period the style is more elevated and
passionate. Occasionally the time of origin is determined by reference
to historical events. In accordance with such principles of criticism
two leading scholars, Nöldeke (_loc. cit._) and H. Grimme (in his
_Mohammed Zweiter Teil_. _Einleitung in den Koran. System der
koranischen Theologie_, Münster, 1895), have arranged the _suras_ as
follows:--

_Order of Suras in Koran._

NÖLDEKE.

_Mecca._

1st to 5th yr. (a).
96. 74. 111. 106. 108. 104. 107. 102. 105. 92. 90. 94. 93. 97. 86.
91. 80. 68. 87. 95. 103. 85. 73. 101. 99. 82. 81. 53. 84. 100. 79.
77. 78. 88. 89. 75. 83. 69. 51. 52. 56. 70. 55. 112. 109. 113. 114.
1.

5th and 6th yr. (b).
54. 37. 71. 76. 44. 50. 20. 26. 15. 19. 38. 36. 43. 72. 67. 23. 21.
25. 17. 27. 18.

7th yr. to Flight (c).
32. 41. 45. 16. 30. 11. 14. 12. 40. 28. 39. 29. 31. 42. 10. 34. 35.
7. 46. 6. 13.

_Medina._

2. 98. 64. 62. 8. 47. 3. 61. 57. 4. 65. 59. 33. 63. 24. 58. 22. 48.
66. 60. 110. 49. 9. 5.

GRIMME.

_Mecca_, (1).
[2] In old saj` form: 111. 107. 106. 105. 104. [103=]. 102. 101.
100. 99. 108. 96. 95. 94. 93. 92. 91. 90. 89. 88. [87=]. 86. [85=].
[84=]. 83. 82. [81.=] 80. 79. [78=]. 77. [76=]. 75. [74=]. [73=].
70. 69. 68. 114. 113. 36. 55. 54. [53=]. 52. 51. 50. 15. [22=].
[14=].

(2).
In loosened _saj`_ form: 46. 72. 45. 44. 41. 97. 40. 39. 38. 37. 36.
35. 34. 32. 31. 67. 30. [29=]. 28. 27. 26. 71. 25. 20. 23. 43. 21.
19. 1. 42. 18. 17.

_Medina._
[16=]. 13. 12. 11. 10. [7=]. 6. 98. (112. 109).

From the Flight to Badr.
[2=]. 62. 5_(15.88.108-120). 47 and some interpolations in Meccan
_suras_.

From Badr to Ohod
8. 24. 59.

From Ohod to capture of Mecca.
3. 29_(1-12). 4. 57. 64. 61. 60. 58. 65. 33. 63. 49. 110. 48.
5_(1-14). 66. 9_(1-24).

After capture of Mecca.
9_(25-124).

Theology.

On the supposition that the arrangements given above are at any rate approximately correct, it is possible to trace a certain development in the teaching of the Koran on some of the chief dogmas. It must, however, be borne in mind that orthodox Islam recognizes the Koran as the work not of Mahomet but of God. Yet Moslem theologians recognize that some revelations are inconsistent with others, and so have developed the doctrine of _nasikh_ and _mansukh_ ("abrogating" and "abrogated"), whereby it is taught that in certain definite cases a later revelation supersedes an earlier. A critical study of the Koran shows in the earlier revelations the marks of a reflective mind trained under the influence of Arabian education and stirred by an acquaintance (somewhat imperfect) with Judaism and Christianity. The later revelations seem to be influenced by the now dominant position of the Prophet and a desire after the capture of Mecca to incorporate such heathen religious ceremonies as are national. God is one and universal from the beginning. His unity is emphasized as against the mistaken conception of the Christian Trinity. At first his might is taught by the name _Rabb_ (Lord) which is generally used with an attribute as "the highest Lord," "Lord of the worlds," "Lord of men," "Lord of heaven and earth," "Lord of the East and West," or "our Lord." Then he is identified with the god Allah (see above) and the first part of the later Moslem creed is announced--_la ilaha illa-llaha_, "there is no god but Allah." But every act of creation is a proof not only of God's power but also of his beneficence (xiv. 37), and so he becomes known as _ar-Rahman_, "the Compassionate." The attributes of God may all be arranged in the three classes of his power, unity and goodness. They are expressed by the ninety-nine "beautiful names" applied to him in the Koran (see E. H. Palmer, _The Quran_ in "Sacred Books of the East," vol. vi., Introd. pp. 67-68, Oxford, 1880). In the Medina period of Mahomet's life the nature of God is not so clear, and the description of it varies according to the moods of the Prophet.

Spirits.

Beside God are two other uncreated beings: (1) the original of the Koran, the "mother of the Book" (xliii. 3) on a "preserved tablet" (_lauh mahfuz_) (lxxxv. 22), in accordance with which God acts, and (2) the throne (_kursi_) (ii. 256). When the heavens are created, God sits on his throne in the seventh heaven; around him are angels, pure, sexless beings, some of whom bear the throne, while some are engaged in praising him continually. They are also his messengers and are sent to fight with the believers against the heathen. Some are the guardian angels of men, others are the watchmen of hell. Mediate beings between God and man are the "word" (_amr_) and from it the "spirit" (_ruh_) or "holy spirit" (_ruh ul-qudus_). Another manifestation of God to the believers only is the "glory" (_sakina_).

Cosmology.

Ethics.

God created the world in six days according to the plan of the Book. Each new life was created by God's breathing into it a soul. The duality of soul and body is maintained. In each man is a good and a bad impulse. The bad impulse which was latent in Adam was roused to action by Satan (_Iblis_). Adam by his fall lost the grace of God, which was restored to him solely by the gracious choice of God. Between men and angels in their nature are the genii (_jinn_) male and female, inhabitants of desert places, created from smokeless fire. They had been accustomed to spy round heaven, but in Mahomet's time could learn no more of its secrets. Some of them were converted by the Prophet's teaching. Lowest of creation in his estate is Satan (_Shaitan_), who was an angel but was expelled from heaven because he refused to worship Adam at his Lord's command. God has revealed himself to man by (1) writing (_kitab_), and (2) prophets. As he had given to the Jews the Law (_Taurat_) and to the Christians the Gospel (_Injil_) so he revealed to Mahomet the Koran (Qur`an, known also by other names, e.g. _al-Furqan_, _at-Tafsil_, &c.), each single revelation being called an aya. With his revelation God has also sent an apostle or prophet to each people. Several of these are mentioned in the Koran, Moses the prophet of the Jews, Jesus (_Isa_) that of the Christians. Mahomet is not only the apostle of the Moslems but the "seal of the prophets," i.e. the final member of the class. His mission at first was to warn men of imminent judgment. Later he became more of a teacher. At first he seems to have relied for the salvation of men on his natural faculties, but later announced the doctrine of God's election. The ethics of the Koran are based on belief (_iman_) and good works, the latter alone occurring in the early Meccan _suras_. Fear of the judgment of God was a motive of action; this is followed by repentance and turning to God. A complete surrender to God's will (_islam_) is the necessary condition of religious life and is expressed in the phrase so common in everyday speech among the Moslems--_inshallah_, "if God will." God has full power to overlook evil deeds if he will. Unbelievers can acquire no merit, however moral their actions. A short account of the chief ethical requirements of the Koran is given in xvii. 23-40:--