Le califat de yazid ier. 1909-21
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| 17, 24) forbids children to insult their parents, whence all the schools conclude that they are forbidden to strike them. According to the Zahirites, the question does not arise; it is ‘mafhum’, implied.
ORTHODOX SCHOOLS. From the seventh century A.H. onwards the struggles subsided and it was agreed to recognize four schools, all considered equally orthodox. They owed their regional diffusion to somewhat secondary circumstances; less to the value of their teaching than to the prestige of their founder; next, to the influence exercised by the most eminent of their disciples—such as the Qadi Abu Yusuf amongst the Hanifites, and finally, to the grace and intervention of the sovereign who befriended them in their immediate JURISPRUDENCE 85
The school of the Imam Shafi'i (819) predominated at first under the ‘Abbasids, to whom the founder was related, up to the time when the influence of Abu Yusuf, a disciple of Abu Hanifa, disputed its pre-eminence in Iraq. From Iraq the Shafi'ites spread along the Persian Gulf, into southern Arabia, eastern Africa, the Indian Archipelago; Palestine, the Hejaz and Lower Egypt. Cairo possesses the tomb of the founder as well as the celebrated mosque Al-Azhar, whence Shafi'ite teaching is disseminated. The school of the Imam Malik Ibn Anas (795) was founded at Medina, the cradle of primitive tradition, ‘dar as-Sunna’ (v. p. 69). It therefore claimed to have remained the repository of pure orthodoxy, and in its decisions, to go back to the Sunna, followed by the Prophet and his first Companions. Formerly predominant in Andalusia where it supplanted the Auza'ites, it prevails at the present time in the Maghrib, in western Africa, in the Sudan, in the whole of northern Africa with the exception of Lower Egypt, and lastly, in the Arab districts bordering on the Persian Gulf. The Turkish territories, those detached from the old Ottoman Empire, where only the Hanifite rite was recognized as official, those of Central Asia and the continent of India, followed the school of Imam Abu Hanifa (767). Almost half of Islam in the world to-day professes the Hanifite fiqh. The Shafi'ite school comes next in number of adherents. That of the Imam Ahmad ibn Hanbal (855), author of the Musnad or collection of traditions (v. p. 76), has almost disappeared. It was only from the sixth 86 ISLAM BELIEFS AND INSTITUTIONS
The influence of the Ottomans, continuing the reaction inaugurated by the Seljuks, dealt it a serious blow, from which the school of Abu Hanifa benefited. This latter, born in the busy cosmopolitan atmosphere of Iraq, showed itself more open to casuistry, and therefore to speculative methods, than its rivals. In the middle of the eighteenth century the Wahhabi reform again brought Ibn Hanbal's system into vigorous existence in the centre of Arabia and exaggerated its hostility to every innovation. METHODS. The school of Abu Hanifa has been credited with understanding better than its rivals the need for reserving an adequate place for ‘ra'y’, liberty of opinion, and also reproached with lessening thereby the role of the Sunna. Couched in these terms, praise and blame are equally unmerited. It is certain that the Iraqian school early encountered the opposition JURISPRUDENCE 87 of the school of Medina, whose head Malik conceived it his duty to vindicate the imprescriptible rights of the prophetic Sunna. The Hanbalites showed themselves even more implacable. They only allowed ‘ra'y’ in desperate cases, in the absence of any Qoranic stipulation or traditional antecedent, and were thus obliged to welcome the most vulnerable hadith. When one peruses the writings of their most representative polemicists, Ibn Jauzi (†1200) and Ibn Taimiyya, one thinks involuntarily of the scribes in the Gospel, for like these, they see salvation only in servile adherence to ‘the tradition of the Ancients'. The school of Shafi'i professed to intervene, to reconcile these disagreements and find the golden mean between the Hanifites and their adversaries. They did at least succeed in determining with greater exactitude than before the respective value of the ‘four roots’ in fixing precisely the role accruing to ‘qiyas’, or analogy, and, in this way, preventing possible abuse of logical deduction. Apart from these reservations, the tendencies of these schools and their methods present divergences more apparent than real. None of them can dispense with reason. The points on which they split frequently come down to differing classifications and decisions on minor matters, any of which can be admitted with a clear conscience. Their agreement duly declared establishes general law or ijma'. Their divergences are binding only on the followers of the rite. Every Muslim must belong to one of the four orthodox schools and conduct himself in accordance with the fiqh of that school. But he is not tied to it for life; he is permitted to pass from one to another. In the bosom of the same family, father and son may belong to different schools, just as in a special case jurists have the right to appeal to the decisions of a school other than their own. In 88 ISLAM BELIEFS AND INSTITUTIONS the same way, the Christian theologian may range himself ad libitum on the side of Thomists, Molinists, Augustinians, Scotists, Probabilists or Equi-probabilists. The better to understand the tendencies of the four schools let us take a concrete question very much discussed in recent times, especially since the bold innovations of the Kemalists: Is it licit to translate the Qoran? All the schools are in agreement on the ritual and liturgical use of the Qoran, and Shafi'i teaches that the formulæ of the salat must be recited in Arabic,—nothing less will do. ‘Every believer will, then, be doing a meritorious work in perfecting himself in that tongue, the vehicle of the last prophetic revelation.' Abu Hanifa, himself of Iranian origin, allows, however, an exception in favour of the foreigner who is incapable of pronouncing the formulæ of prayer in Arabic. But is it lawful to teach the Qoran to non-Muslims—a question entailing the translation of the sacred text? Abu Hanifa sees no difficulty in it. He relies on the hadith and this time finds himself in apparent agreement with the doctrine of the Hanbalite school. Shafi'i sets forth the pros and cons. Malik alone is resolutely hostile. His attitude is no less uncompromising when the question of a complete translation of the Qoran arises. As before, Shafi'i evinces hesitation and does not take a clear decision. Hanifites and Hanbalites approve of an interlinear version, such as exists in Persian, Urdu, Malay, etc., or one in which the Qoranic text in Arabic faces the translation. DIFFERENCES. There would appear to be no settled agreement on the strict obligation of circumcision. Certain collections of the fiqh refrain from mentioning it or only mention it in passing, and allow this practice, which some have insisted on regarding as the symbol JURISPRUDENCE 89 of initiation into Islam, to be postponed until the age of fifteen. Let us recall the discussions relating to the modalities in use in the performance of devotions. Which formulæ should be pronounced in a loud or in a low voice (dhikr khafi)? The Shafi'ites, in opposition to the Hanifites, favour manifest recitation spoken aloud, ‘dhikr-jahri’. Ought the arms to hang down during prayer? How high should they be raised when uttering the takbir,’ ‘Allah Akbar’, God is Great? What should be the position of the hands during prayer, above or below the navel? Does prayer remain valid if a woman takes her place by the side of a man or in the midst of the faithful? Here Abu Hanifa takes an anti-feminist decision. With regard to ‘zakat al-fitr’, alms to be distributed at the end of Ramadan, the Shafi'ites consider it as ‘fard’, a rigorous duty, the Hanifites as ‘wajib’, less strictly obligatory, and the Malikites as ‘sunna’, custom. What becomes of prisoners taken in the Holy War? Abu Hanifa condemns them to death or slavery. Shafi'i, however, allows them to be liberated on payment of ransom, or even without. On the other hand, Abu Hanifa allows marriage with a Scripturary woman; an authorization contested by Shafi'i, on the ground that the Scripturaries, having ‘altered the text of the Bible’, must have lost the right to be treated as Scripturaries. Among the four schools, that of the Hanbalites shows itself, all things considered, the least tolerant towards non-Muslims. How and when should fasts, omitted during Ramadan, be compensated? Ought the repentant renegade to make up the prayers and fasts that he has missed during his apostasy? Shafi'i and Abu Hanifa, in opposition to the other schools, refuse to be entangled in such complicated calculations. Shall a foundling be con- 90 ISLAM BELIEFS AND INSTITUTIONS sidered a Muslim? Yes, reply all the heads of the schools, apart from Abu Hanifa, who replies in the negative, if the discovery is made in a place inhabited by non-Muslims. According to the same authority a Muslim heretic, before being condemned, must be invited to repent (istitaba). This procedure is not required amongst the Malikites. Malik and Shafi'i condemn the apostate to death without regard to sex. In the case of a woman, Abu Hanifa contents himself with solitary confinement. According to Malik, blood money for a murdered tributary amounts to the half of the sum to be paid for a Muslim; according to Shafi'i to a third only. Abu Hanifa, much more humane, disallows these distinctions, and exacts payment of the full price. In Arabia the heathen have only a choice between Islam and death. As to the other heathen, the schools are divided: may they be allowed to pay tribute, to contract marriages with Muslims? etc. Failures in respect for the Prophet are punishable. In the case of a Scripturary, Abu Hanifa is fairly lenient; the other schools demand severe punishments, and even death. Abu Hanifa permits the execution of a Muslim who has murdered a tributary, but this is completely rejected by all the other schools. According to Malik and Abu Hanifa, the borrower of an article may lend it to others without asking the owner; but permission is indispensable in the opinion of Shafi'i. With regard to the legal duration of gestation, Malik, who of the four Imams held the most extreme views on this question, allowed it to last as long as four years, and according to this system, a child born three years after its father's death can claim its inheritance in law! On the subject of lawful or unlawful food, on the use, for example, of horseflesh, the schools are divided; Malik alone authorizes the flesh of beasts of prey. JURISPRUDENCE 91
By a suitable application of the rules of supple hermeneutics certain imperatives in the Qoran can be transformed into simple optatives; that is to say, strict duties into works of supererogation. With the same facility the inverse operation is accomplished. ‘Take in marriage, of the women who please you, two, three, or four,’ says the Qoran (4, 3). An authorization, a concession, to all appearances, but some ingenious canonists have discovered in it a command and the explicit condemnation of celibacy. This is the triumph of casuistry. It permits of discovering in the text of the Qoran and also in the inner meaning of a hadith decisions appropriate to the most unexpected circumstances and of adapting them to the needs of the 92 ISLAM BELIEFS AND INSTITUTIONS
MODERN PRACTICE. The fiqh, as we have already remarked (p. 83), is deemed to have sprung from Qoranic revelation, and owes to this conception its immutable character. It is not for man to modify the decisions of revelation. Moreover, this rigidity has always obstructed its plenary application except in certain matters: the personal statute and property in mortmain (waqf). Even in those countries governed by Muslim rulers the state has never refrained from laying down a complete code of independent secular law (Qanun, Mejelle, etc.). This is how the fiqh has become a speculative science, concerned with an ideal law and a purely academic state of society, divorced from the realities of modern life. With as much seriousness and diligence as a Mawardi, the theorist of power in Islam (1058), would have brought to the task, the fiqh continues to study a Muslim State which no longer exists. It describes in minute detail its component parts and the working of its machinery. It discourses on the administration and use of the imaginary revenues of this State. It starts with the postulate of a world-wide Caliphate, destined to make the universe bend under the law of Islam. It determines the rules of international law and the laws of war, together with the system of government to be applied to the tributaries of Islam. Its conception of commercial law and of civil contracts clashes with the organization of financial credit and with the economic relations established between modern peoples. It expatiates upon a penal law wherein the Qoran (2, 175) has maintained the Beduin principles of ‘qisas’, an eye for an eye. To the victims and their relatives, it leaves the choice between pardon and a pecuniary settlement, diya, and the decision of the injured party JURISPRUDENCE 93 deprives the State of all power to punish violation of social law. In the case of certain offences the State likewise finds itself compelled to abide by the ‘hudud Allah’, penalties laid down by the Qoran (v. p. 64). As in the case of the Sunna and Tafsir, the dissident sects also possess their special fiqh. The principal points on which it differs from the jurisprudence of the Sunnis will be discussed in the chapter on sects. IJMA'. The Prophet has said: ‘My people will never agree in an error.’ The dictum disagreement is a mercy from God’ is likewise attributed to him. The meaning seems to be that the diversity of interpretations among the learned should set the conscience of the Faithful at rest by leaving them the choice of a decision. These two sayings are destined to explain the variety of the orthodox schools and also the origin of ijma'. It would seem that the honour of having outlined the first formula of ijma‘ rests with Malik, founder of the Medinese school. He thought he had found in it a weapon against Abu Hanifa, whom he accused of having trifled with the Sunna. The theory, enlarged by the Imam Shafi'i, permits of an immediate decision in an ever-increasing number of cases, where the three other roots of fiqh led to no solution. Ijma‘ was not long in exceeding the narrow limits within which it was intended to be confined, and it was thus that the deductions drawn from Qiyas had to be made homologous by the consensus. Soon the same thing happens to the Sunna: this also was subjected to a check, based upon the agreement of believers. The task of defining and then discovering this agreement still remained. Who were to be its witnesses, its authorized interpreters? The absence of an ecclesiastical hierarchy has never permitted a clear understanding on this 94 ISLAM BELIEFS AND INSTITUTIONS question. The ‘Companions’ of the Prophet and their immediate successors were at once suggested. As the first disciples, they were supposed to have been directly trained by the Master (v. p. 68), and all had lived in the era that has been considered the golden age of Islam. Such, one conceives, must have been the definition adopted by the Imam Malik, the defender of the Medinese Sunna. It was destined to win the support of numerous Hanbalites and later that of the Wahhabis. The Zahirites only acknowledged the ijma‘ of the Companions. It was, however, necessary to broaden this concept in order not to close the door on the solution of new difficulties. ‘The ‘ulema are the heirs of the prophets’, thus Muhammad is supposed to have spoken. To them falls ‘the mission of binding and loosing’. Are they not ‘the learned men to whom is known the interpretation of Qoranic revelation’? (3, 5). It was, then, decided to define ijma‘ as the agreement between the teachers and ‘ulema of a certain period. What one generation of legislators had taught was considered by the following generation to have received the stamp of ijma'. This teaching is supposed to transmit in its entirety the tradition of the ‘pious ancestors’ (assalaf-as-salih) and to be elastic enough to answer fully all the needs of later times. A general consultation is not required and the organization of Islam would render it impossible. It is sufficient that the decision of a group of ‘ulema meets with the tacit approval of their colleagues. The masses have nothing to do with these questions. In Islam the real heretics are those who refuse to submit to ijma'. The Orthodox rightly call themselves not only ‘people of the Sunna’, but also ‘people of jama'a’, that is, subscribing to the decisions of ijma'. Thus understood, ijma‘ in its fluidity and elas- JURISPRUDENCE 95 ticity replaces the intervention of the infallible consensus Ecclesiae and ensures to a great extent the doctrinal agreement of the community. It tolerates, being unable to prevent it, a certain evolution of the Shari'a; but knows when to intervene at the right moment to prevent the abuses of unrestricted liberty. It is, generally speaking, the result of a compromise between extreme doctrines and follows upon the sometimes bloody struggles prolonged by the intolerance of the Hanbalites. The agreement is never complete, even within the limits of a school of jurisprudence. These divergences do not impair the catholicity of the Islamic system; ijma‘ assumes responsibility for them all, and ensures to them its own character of infallibility. It is ijma‘ that has secured the admission of the vulgate text of the Qoran as well as its Tafsir, or authorized exegesis. The ‘Six books’ of hadith and the four juridical schools owe their official recognition far more to ijma‘ than to the excellence of their method and the prestige of their authors and founders. Moral mysticism or orthodox Sufism was to benefit, but much more tardily, by the same authorization. For this success, in spite of the opposition of the Hanbalites, Sufism is indebted to the personal influence of Ghazali, who had become, one of the ‘revivers of religion’ (muhiy ad-din) by his struggles against the abuses of philosophic and juristic speculation. Ijma‘ leaves the door open to the entry of new formulæ and opinions, combated at first as dangerous innovations (bid'a). Then, as resistance dies down, they are partially admitted by the orthodox schools and finally confirmed by ijma', from which they obtain at least a sort of passport, a tolerari potest. We may instance the cult of the Prophet, the festivals ordained in his honour, such as that of the maulid, birth, the belief in his miracles, a belief contradicted 96 ISLAM BELIEFS AND INSTITUTIONS by the Qoran (v. p. 51), the existence and intercession of the saints (wali, awliya)—primitive Islam recognized the quality of saintliness only in the prophets—the veneration of their tombs....All these innovations are opposed in principle to the spirit of Qoranic monotheism. This latter acknowledges no intermediary between Allah and the believers. Ignoring the opposition of the Hanbalites, ijma‘ has legitimized intermediaries by bringing to their support the consecration of Islam throughout the world, the approbation attested by popular custom and the silence of the teachers. It conferred on the Ottoman Caliphs the validation of their title and dispensed them from the necessity of belonging to the Quraish, a condition which ijma‘ had first pronounced necessary. It finished by making lawful the use of tobacco and the lithographic reproduction of copies of the Qoran, the printing of which is still a subject of scruple to timid believers. The same organ of validation will doubtless soon pronounce in favour of the pictorial and photographic representation of living beings. Ijma‘ is a spontaneous phenomenon, born of the need for uniformity, a manifestation of what may be called the instinct of a believing people. We have seen how after many gropings Islam has agreed upon a formula elastic enough to be accepted, and of which ‘the closing of ijtihad’ assures the efficacy. Some Orientalists have thought that this elasticity could be utilized to adapt the Shari'a to modern needs. ‘What ijma‘ has laid down, another ijma‘ can modify.’ Such is also the reasoning of Muslim modernists, whose claims would outrage the ‘ulema who elaborated the theory of ijma'. Doctrinal agreement settles nothing. It can neither be created nor organized as a whole; nothing can be done except to note its existence. It deals with the past not with the future, and when the JURISPRUDENCE 97 doctors chance to invoke it this is solely to justify and legalize innovations, to link them laboriously to the ‘Sunna of the pious ancestors’ and not to contest the perpetuity of tradition. It therefore seems rash to attempt to regard ijma‘ as an ultimate means of introducing reforms to the Shari'a. THE LIVING AUTHORITY. Theory asserts that the Shari'a derives directly from the Qoran and the prophetic tradition, and logic demands that the first duty of the Faithful should be to apply themselves to the study of these two ‘roots’ of Islamic doctrine. This is not the case, even with the most independent minds such as the Zahirite ibn Hazm (†1064) and the Hanbalite ibn Taimiyya, who claims to be guided by the Qoran and Sunna alone. In practice it is neither the letter of the Suras nor the contents of the Sunna, but their interpretation by the living authority, residing in the person of the ‘ulema, which serves as criterion for the settlement of litigious questions. It has been agreed that from the fourth century A.H. ‘the door of ijtihad is shut'. Since then, all the learned and Faithful have been reduced to taqlid, unreserved submission to the decisions of one or other of the orthodox schools. The end of the third century A.H. coincides with the setting up of these schools and the compilation of the ‘Six Books’, with the crystallization of traditional dogma which was soon to accept the theodicy of Ash'ari (v. p. 57). These three centuries had permitted Islam to borrow from without the elements essential to its doctrinal and juridical evolution, merely disguising these borrowings under the authority of the Prophet. It was agreed to admit that all the great problems had been discussed and fully elucidated in the teaching of the orthodox schools. IJTIHAD, or, to be more precise, ‘absolute’ (mutlaq) ijtihad, is the critical study, the independent discussion 98 ISLAM BELIEFS AND INSTITUTIONS
It is on the decisions of the old masters, classified under special rubrics and collected in manuals, that the ‘ulema, professors of the fiqh, expend their energy. Thus circumscribed, their teaching is limited to commentaries on the collections in use amongst the divers rites. There can be no question of going back to the ‘roots’ of the law, that is to say, the Qoran and the Sunna, which these manuals have replaced. It is on secondary points, where the editors of the school compendiums find themselves in disagreement, that a professor is allowed to make his own choice and express a personal opinion, but even this is usually confined to an attempt to reconcile the divergent solutions. These commentaries end by being substituted for the manuals which preceded them. They give rise to other glosses and become the source of fresh compilations which, in their turn, rank as school texts. Public teaching consists, then, in the reading of one of these texts which the professor accompanies by short philological and juridical explanations, drawn from the best commentaries of his predecessors. This JURISPRUDENCE 99 shows within what narrow limits first ‘relative’ ijtihad, then the theory of taqlid, the obligation to hold strictly to the opinions of one school, enclose doctrinal evolution, the progress of Islamic speculation. The ‘closing of ijtihad’ could not fail to excite the protests of Muslim modernists. They see in it ‘a crime committed against Islam by the ‘ulema under the cloak of religion’. Others more moderate declare that no one has the right gratuitously to exalt the authority of human teachers at the expense of the Qoran and the Sunna. NO COUNCILS. Nowhere have the weaknesses of the theory of ijma‘ and taqlid been more stressed than among the Shi'as. They have proclaimed the complete incapacity of human reasoning to arrive at absolute certainty in matters of dogma. For the taqlid of the Sunnis these dissidents have substituted their own taqlid. To the vacillating and variable concept of ijma‘ they oppose an official and permanent organ of certitude which is nothing more or less than the judgment of the infallible Imam. This descendant of ‘Ali possesses the sublime and hidden meaning (ta’wil) of the Qoran, transmitted to him by his ancestors who had it from the Prophet's son-in-law. The Shi'a doctors are called ‘mujtahid’. They regard themselves as the interpreters and organs of the ‘Alid Imam and, in this capacity, share in his infallibility. In the Shi'a there can thus be no question of schools or diversity of opinion. It recognizes nothing but the principle of authority. The Sunnis are unable to admit the prerogatives of this hypothetical personage. Neither is ijma‘ with them, as it is in the Christian church, the result of synodal assemblies and of decisions taken in council. Islam lacks a hierarchy charged to watch officially over the trust of Qoranic revelation. Never during 100 ISLAM BELIEFS AND INSTITUTIONS the thirteen centuries of the Hijra has the idea of publicly consulting the Faithful on controversial questions occurred. Must this not be taken to indicate that a discussion of this kind is repugnant to the constitution of Islam? Its realization would have clashed with the independence and reciprocal autonomy of the orthodox schools. Since decisions taken in common would necessarily be based on the doctrine of one or other of these schools, they would have no binding value for the adherents of the other madhhab. Neither have the ‘ulema living in the same country and belonging to the same school ever thought of deliberating together, since no one can claim the privilege of ‘absolute’ ijtihad. When those of the university of Al-Azhar, at Cairo, pronounce a collective opinion on a question concerning all Islam, they realize, or if need be they are reminded, that they only speak in the name of the Shafi'ites. The project lately advanced of a congress, representative of all Islam, to settle the problem of the Caliphate, is therefore an innovation fraught with grave consequences. Islam exists on the postulate that the Qoran and the Sunna contain a reply to everything. What is the use of meeting for discussion when one possesses the treasure of the orthodox tafsir and the decisions of the great imams? The body of the faqih and that of the ‘ulema are charged to ‘bind and loose’, upon them devolves the mission of replacing the vox populi. It was, then, laid down in principle that the via media of the authorized ‘ulema, i.e. their explicit teaching or even their mere silence (taqrir), should be accepted as the rule, that the matters established by their doctrinal consent, by an agreement quasi-universal, could not be brought under discussion again. It was upon this ijma‘ of the orthodox teachers that in the eighteenth century the movement of the Wah JURISPRUDENCE 101 habis, with its claim to restore the purity of primitive Islam, was wrecked. On questions of detail, as the polemics of the Wahhabi precursor, Ibn Taimiyya, have shown, the innovators of Central Arabia may have been right. Their mistake was in wishing to confine ijma‘ within too narrow chronological limits, in denying all later adaptation, in shutting the door on doctrinal and disciplinary evolution necessitated by the world-wide expansion of Islam. In the same way the Greek Church in the East claims to admit only the definitions of the first seven ecumenical councils. To subscribe to the claims of the puritan Wahhabis would have been tantamount to a tacit admission that the Muslim community had been united in error for more than a thousand years. THE ‘ULEMA, we have said, are regarded as the authorized interpreters of the consensus. It is to them that the simple Faithful turn, when in doubt, for the solution of cases of conscience or the definition of controversial points of doctrine. The written answers which they obtain are founded on Qoranic texts, on the Sunna, the doctrine of the four Schools, and, lastly, on ijma‘. These answers constitute a fatwa, or decision. For the believer the fatwa is as good as the arguments upon which the conclusion is based. The authors of these fatwas, when they are officially charged to give such solutions, are called muftis, literally givers of fatwas; they occupy a place apart in the body of ‘ulema. In Turkey the ‘ulema are called khoja, in Persia and in India mulla (maula), or master. In the time of the Ottoman Empire, the supreme head of the ‘ulema and muftis bore the title of Sheikh-al-Islam. He performed for Islam the functions of a Minister of Cults. From the religious and doctrinal point of view, his authority surpassed that of the Sultan-Caliph. But he was nominated by the latter and could 102 ISLAM BELIEFS AND INSTITUTIONS be deprived of his office at will,—a precaution which safeguarded the ruler from any whim of independence. THE QADI, likewise chosen from among the ‘ulema, is the titular head of a judicature or magistracy. We have already noted (v. p. 92) the existence of a kind of legal dualism in several Muslim countries and the attempts to modernize parts of the fiqh. It is thus that side by side with the Sheikh-al-Islam, to whom in theory the Qadis are answerable, the Ottoman Empire possessed a Ministry of Justice. Republican Turkey has completely overthrown and laicized the old Muslim jurisprudence. The Egyptian government, too, has revised certain points of the personal statute. As to the Qadi, his judgments are based exclusively on canonical law or Shari'a and profess to ignore the modifications introduced by the civil power. The matters which come within his jurisdiction are those for which the Qoran has enacted special laws, e.g. the personal statute, successions, pious foundations (waqf). In criminal matters (v. p. 64) and all other questions referred to him for examination by the civil authority, he applies the ‘hudud Allah’. His tribunal admits oral testimony alone; that of a non-Muslim is excluded. Muslim governments have always sought to restrict the jurisdiction of the Qadi, especially in criminal matters. They reserve to themselves the right not only of executing, but also of confirming the sentences passed by the canonical tribunals. The Qadi is at once judge and notary, and his province sometimes extends to the sphere of civil justice. He legalizes deeds, and by reason of this can be called on to intervene in the drawing up of bills of sale and also in marriage contracts. Nevertheless, his presence is not required to establish the validity of the matrimonial bond. He is the guardian of orphans, the supervisor and sometimes also the administrator of property which is waqf. JURISPRUDENCE 103 NO CLERGY. Islam possesses neither clergy nor, properly speaking, a liturgy. The Sufis alone in their meetings of dhikr organize something approximating to liturgical ceremonies. These comprise, with songs, and dances, the recitation of litanies, peculiar to each Sufi fraternity. Orthodoxy looks askance at these manifestations, and displays as little enthusiasm for the illumination of the mosques and minarets on certain feast-days,—processions in times of plague, the celebration of the maulid and other ceremonies which come to break the monotony of the official cult. The Muslim Friday has nothing in common with the Jewish Sabbath or Christian Sunday. As we have seen (v. p. 60), it entails no obligation of a weekly rest; the Faithful are merely obliged to attend public noonday prayer. What, apart from its publicity, distinguishes this prayer from all others is the khutba or sermon, always in Arabic, which precedes it. The Imam, charged with delivering it from the minbar or pulpit, is called khatib or preacher. Since there must be a congregation of at least forty of the Faithful (v. p. 59) for the Friday public devotions, the khatib only functions in the principal mosques or jami', to the exclusion of the masjid, or secondary mosques. The use of the khutba has not succeeded in creating in Islam a literature which recalls the eloquence of the Christian divines. Its style is formal and cramped from recourse to assonance or saj‘. The expositions and exhortations of which it is composed do not go beyond generalities and are often borrowed from earlier collections, especially in those regions where Arabic is no more than a dead language. The principal interest lies in that part of the khutba which it has been sought to compare with our Domine salvum fac, with this difference, that it bears, much more than does the Christian liturgy, the character 104 ISLAM BELIEFS AND INSTITUTIONS
Here is an extract from the khutba in use in the Hejaz in the time of King Husain ibn ‘Ali prior to his claim to the Caliphate. This specimen likewise shows the degree to which political claims may appear in a khutba: ‘O God! protect Thy servant, the son of Thy servant, guardian of Thy town in its firm security and of the city of his ancestor, the Lord of Prophets (Muhammad), Sherif and Amir of Mekka, King of the Arab countries, our Lord and Master, the Sherif Husain!...Let all the Muslim rulers prosper; destroy the impious and the heretics and whoever devises evil against Thy faithful believers, from the East unto the West.' In theory the Caliph is regarded as the head of all Islam. By virtue of this his name should figure in the khutba. Circumstances do not always permit the fulfilment of this duty, and that is why use of the ‘tacit’ or ‘implicit’ khutba has sprung up. Without pronouncing any name and as though there were a ‘vacancy in the see’, the khatib, before mentioning the local sovereign, contents himself with praying for ‘the Caliph of the Muslims’. This formula is less innocuous than would appear. It is the homage paid to a political supremacy, for the Caliphate carries with it no spiritual or strictly religious prerogative. In Morocco nothing stands in the way of the ‘explicit’ JURISPRUDENCE 105
In the absence of a liturgy and of religious ceremonies the existence of a body of clergy specially ordained to direct divine service would be purposeless. As for the spiritual care of souls, orthodoxy does not admit that it is necessary. It protests against the direction exercised by the Sufi Sheikhs over their novices and disciples, which practice appears to the orthodox a gratuitous insult to the boundless efficacy of the Shari'a and the Sunna of the Prophet. Knowing nothing of the sacraments and the Christian dogma of atonement, Islam has no place for a ministry, as sole and hierarchical medium of spiritual grace. This latter conception, as well as the necessity for an ecclesiastical hierarchy, appears to Islam irreconcilable with the imprescriptible rights and absolute dominion of Allah over His creatures. The Qoran ( |