A Defense of Traditional Islamic Law

I have just finished reading an interesting book, An Introduction to Islamic Law by Wael Hallaq. The author is a scholar, but the book is clearly aimed at a general audience. Its central theses are:

1. Traditional Islamic law was a well functioning legal system, superior in most ways to modern law.

2. That system was corrupted and ultimately destroyed in the course of the 19th and 20th centuries by some combination of western influence, direct and indirect, and the rise of the nation state.

The author makes a persuasive case and one that ought to be particularly interesting to libertarians, since it starts with the fact that, in Islamic legal doctrine, law is independent of the state. Judges are appointed by the ruler, but the law they enforce is not state created but derived by legal scholars from religious sources. I like to describe it as what Anglo-American common law would be if the decisions of judges were replaced by the books and articles of law professors. Further, the legal system itself was polylegal, with (eventually) four mutually orthodox schools of Sunni law coexisting, along with Shia, Christian, and Jewish law.

The case Hallaq makes is persuasive, but that does not necessarily mean it is true. A ruler could, after all, use the power to appoint judges to select ones who would rule according to his view of the law and use his control over the enforcement of rulings to determine what laws actually got enforced. 

There is a medieval example in the story of the Caliph al Mansur and the poet Ibn Harma:

The Caliph, delighted with the poet's performance, told him to name his reward; the poet replied that the reward he wanted was to be let off from the punishment for drunkenness when he was found drunk and brought in to the authorities. Al Mansur replied that that was God's law, not his, so he could not change it, and asked ibn Harm to name a different reward; the poet responded that there was nothing else he wanted.

So al Mansur sent instructions to the officials in Medina that, if Ibn Harma was found drunk and brought in, he should receive sixty lashes as specified in Koranic law—but whoever brought him in should receive eighty. And ever after, when someone saw the poet drunk upon the pavement, he would turn to his companion, say "eighty for sixty is a bad bargain," and pass on.

It is a good story and demonstrates one possible disconnect between legal theory and legal practice. But we do not know if it is true or whether if true it represented the rule or the exception.

Why would a ruler choose to leave the content of the law out of his control? Hallaq's answer is that the rulers were typically foreigners—Turkish princes, for instance, ruling over Syrian, Egyptian, Arabic populations. The existing system of Islamic law provided them with legitimacy in the eyes of the population and a link into local customs and social structures. Both were particularly important in a world where pre-modern limits on transport and communication made a modern bureaucratic state of any substantial size, controlled by direct authority, impractical. The rulers were therefor willing to make an implicit deal with the legists, the legal scholars and those associated with them. The ruler left the content of the law to the legists and provided them with material support—salaries for judges and endowments for legal schools, which in turn provided salaries to professors and food and lodging to students. The legists, in exchange, supported the legitimacy of the ruler and ran his legal system for him in a way acceptable to the population he ruled.

Further support for legal independence came from the distinction between the roles of qadi and mufti. The qadi was the judge appointed by the ruler to decide cases. The mufti was the legal authority upon whose expertise both the qadi and the general populace relied. A party to litigation, or anyone else who wanted an authoritative opinion on a legal or moral question, presented the question to the mufti, who provided him with a fatwa, an advisory opinion. If the case got to court, that opinion would be offered as evidence of what the law was. While the qadi was, ideally, a legal scholar himself, he did not have to be, since he could rely on opinions brought to him by litigants or provided by the mufti at his request. And while the qadi was appointed and paid by the ruler, the mufti was not; his position depended only on his reputation.

By Hallaq's account, the result was a legal system that produced generally just and attractive results. In particular, he claims that the poor and powerless frequently succeeded in using it to defend their rights over the rich and powerful, non-Muslims over Muslims, Women over men. He further claims that Islamic law, in contrast to modern law, saw its function more as producing outcomes satisfactory to all parties, where possible arbitrating among them, than as simply choosing winners and losers.

Hallaq obviously has an axe to grind, a conclusion he wants to argue for. He knows much more about the subject than I do, and large parts of his argument depend on facts I have no easy way of checking, in particular on the surviving records of the outcomes of court cases. I know that there is a wide range of opinions about modern legal systems, including the one I live under, despite the fact that they are there to be looked at, and I do not know how wide the range is of possible interpretations of a system that disappeared, by his account, a century or more ago. That leaves me unsure how much of the story he tells to believe

To solve that problem, I have tried to find parts of his story, both what he says and what he does not say, that I can check against other sources. The parts that are clearly true, judging by everything else I have read on the subject, are the theoretical separation of state and law and the existence of a polylegal system in which different people in the same city were under at least somewhat different systems of legal rules. Also, I have access to two webbed accounts of the legal rules, one from the tenth century (from the Maliki school) and one from the fourteenth (from the Shafi'i school), and can compare their contents with what Hallaq says the rules were.

For the most part, what he says is consistent with what they say. I am less happy with what he does not say. Part of his argument, clearly intended to counter hostile views of Islamic law in the modern world, is that the system in practice was not seriously biased against women and non-Muslims. He mentions that a woman's testimony in court counted for half that of a man, but argues that the active involvement of women in court cases shows that that was not a serious handicap. He does not mention that women's testimony was only acceptable at all in a limited subset of legal areas or that, while two women in those areas were the equivalent of one man, a hundred women were also the equivalent of one man, the usual legal rule requiring either two male witnesses or one male and at least two female. Nor does he mention that the damage payment for killing a woman was half that for killing a man or that the damage payment for killing a Christian or Jew was half to a third (depending on the school of law) that for killing a Muslim, or that deliberately killing a Muslim was a capital offense, deliberately killing a Christian or Jew was not. 

None of those facts imply that the system failed to provide a reasonable degree of protection to those who were not male Muslims, or even that it was, in practice, less egalitarian than modern law. Part of his implied argument is that the protection provided by modern law is largely dependent on how much money one has, while it was effectively free under Islamic law.  But they are all facts that would make his case look less persuasive to the readers the book is aimed at. His failure to mention them makes me less confident that the facts he does offer and I cannot check present a balanced picture of the evidence.

When it comes to his second thesis, what happened to destroy that system of non-state law, the problems seem to me both clearer, on his own evidence, and less fundamental. The essential change was the takeover of law by the state. That consisted in part in replacing a system of law as deduced by scholars with one of law as written down by the state, in some cases based on religious law, in others on western models. It consisted in part in the state taking over the machinery for supporting and training the actors in the legal system.  Hallaq wants to blame that change mostly on western influence, direct in the case of Islamic societies under colonial rule (India, Indonesia, Algeria), indirect in the case of the Ottoman Empire, responding both to foreign pressures on an increasingly weak state and by the desire of Ottoman elites to imitate western practices in order to catch up with its western rivals. 

The problem with that account is that, judging both by Hallaq's account and by others I have read, the changes in the Ottoman empire occurred long before the 19th century. The Ottomans supported the Hanafi school of law, with the result that, in much of the empire, judges were required to rule in accordance with that school, while elsewhere judges of the other three schools were subordinate to a Hanafi chief judge who had to approve their rulings as not too inconsistent with those of his school. As early as the sixteenth century, the Sultan sometimes instructed judges as to which of several alternate rules within Hanafi laws they had to follow. In the same century the Ottomans recognized a Grand Mufti, a state appointed top level religious authority. They also took over effective control of the schools where legal scholars were trained. And the Ottoman sultans produced their own legal code, the Qanun, running in parallel with and, in theory, supporting, the religious legal code of the scholars.

Hallaq goes to some length to try to argue that, despite these changes, Islamic law in the Ottoman Empire was alive and well, providing justice and even restricting the power of the Sultan until corrupted by western influence over the course of the nineteenth century. I found this one of the less convincing parts of his argument. 

As I read his evidence, what destroyed the traditional system he admires was the increasing power of the nation state, which eventually annexed the independent legal system and used it for its purposes. That development parallels the process in western societies by which the state took over the church. Hallaq describes the seizure of the property of the waqfs, Islamic charitable foundations used both to support the families of the donors and to support mosques, schools and other charitable enterprises, something that occurred in a variety of different Islamic states, independent or under colonial rule, over the course of the nineteenth and twentieth centuries. He does not mention the obvious parallel to the seizure of the property of the monasteries by Henry VIII. One obvious conjecture is that changes in both east and west reflected changes, possibly technological, that strengthened the position of centralizing political institutions.

It is an interesting book, a persuasive book, and its central thesis, however implausible it may sound to modern readers, could be true. I have a lot more reading to do.

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A note on terminology

Many writers, including Hallaq, use "Shari'a" as the label for the Islamic legal system. As best I can tell, that is not quite right. Shari'a, as I understand it, is the legal system as it ought to be, the legal system in the mind of God. The actual legal system, fiqh, is an imperfect human attempt to implement shari'a in the real world. Since "shari'a" is the wrong label and "fiqh" unfamiliar to most of my readers, I have been simply referring to it as the Islamic legal system.