Chapter 6

SeeMahdiism and the Egyptian Sudanby F. R. Wingate (1891);Ten Years’ Captivity in the Mahdi’s Camp(1882-1892) from the MS. of Father Joseph Ohrwalder by F. R. Wingate (1892) andFire and Sword in the Sudan(1879-1895) by Slatin Pasha (trans. F. R. Wingate, 1896). Both Ohrwalder and Slatin were personally acquainted with the mahdi, and their narratives contain much first-hand information. Wingate prints many translations of the proclamations and correspondence of the mahdi.

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

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

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

But it was impossible for the caliph personally to administer the affairs of the empire, and by degrees the supreme office was gradually put into commission, until the caliph himself became a mere figure-head, and vanished into the sacredThe Dīwāns.seclusion of his palace. The history of the creation of government bureaus (dīwāns; seeDivan) must therefore now be sketched. The first need which appeared was that of a means of regulating and administering the system of taxation and the revenues of the state. Immense sums flowed into Medina from the Arab conquests; the surplus, after the requirements of the state were met, was distributed among the believers.All Moslems had a right to a certain share of this, which was regarded as booty. Omar, the second caliph, regulated this distribution and also the system of taxation, and the result was the first divan and the constitution of Omar, looked back to now by all Sunnite Moslems as an ideal. The sources of revenue were (i) the poor-rate (zakāt), a tithe paid by every Moslem; (ii) the fifth of all booty; (iii) the poll-tax (jizya) on non-Moslems; and (iv) the land-tax (kharāj) also on non-Moslems. Thus the constitution determined the position of all non-Moslems in a Moslem state. The ideal was that the Moslems should be kept apart as a superior, fighting caste, and that the non-Moslems should support them (cf.Caliphate, B. § 8, on the reign of Omar II.). The Moslems, therefore, were forbidden to acquire land in conquered countries. The non-Moslems must retain their lands, cultivate them and pay the land-tax (the Arabic word is also used of revenue from the work of a slave) and the poll-tax (the Arabic word means also “ransom”), and give contributions in kind to support the local Moslem garrisons which were massed in great camp-cities at strategic points. If a non-Moslem embraced Islam he entered the ruling caste; his land was distributed among his non-Moslem fellows, and he no longer paid the land-tax but rather received support from the public funds. The amount of these pensions varied with the standing of the pensioner from 10,000 dirhems (a dirhem equalled about a franc) to the widows and relations of the Prophet down to 300. This bureau had, therefore, not only to keep the books of the state, but also to maintain a list of all Moslems, classified genealogically and socially. Its registers were kept by Greeks, Copts and Persians; the Arabs, it may be said in general, adopted the method of administration which they found in the captured countries and drew upon the trained services of their inhabitants.Such a system led naturally to wholesale conversions to Islam; and the consequent decline in revenue, combined with large donations of lands by Othman, the third caliph, to his own family, gradually broke it down. The first patriarchal period of conquest, unearned wealth and the simple life—called by Moslems the period of the “four rightly guided caliphs,” and very happily by Sachau,ein mönchisches Imperium—passed rapidly into the genuinely Arab empire of the Omayyads, with whom came an immediate development of organization in the state. The constructive genius in this was Moawiya, the first Omayyad caliph. Under him the old simplicity vanished. A splendid and ceremonious court was maintained at Damascus. A chamberlain kept the door; a bodyguard surrounded the caliph, and even in the mosque the caliph, warned by the murder of Othman and of Ali, prayed in a railed-off enclosure. The beginning of the seclusion of the caliph had come, and he no longer walked familiarly among his fellow Moslems. This seclusion increased still further when the administration of the state passed by delegation into other hands, and the caliph himself became a sacrosanct figure-head, as in the case of the later Abbasids; when theories of semi-divine nature and of theocratic rule appeared, as in the case of the Fatimites; and finally when all the elaborate court ritual of Byzantium was inherited by the Ottoman sultans.But Moawiya I. was still a very direct and personal ruler. He developed a post-system for the carrying of government despatches by relays, and thus received secret information from and kept control of the most distant provinces. He established a sealing-bureau by which state papers were secured against change. He dealt arbitrarily with the revenues of the state and the pensions of the Moslems. Governors of provinces were given a much freer hand, and were required to turn over to the central treasury their surplus revenue only. As they were either conquerors or direct successors of conquerors they had an essentially military government, and were really semi-independent rulers, unhampered except by direct action of the caliph, acting on information sent by the postmaster, who was his local spy. Being thus the heads of armies of occupation, they were not necessarily charged with the control of religious ritual and of justice. These, like every other function, inhered in the office of the caliph and he generally appointed in each province independent cadis over the courts and imāms to be in charge of religious services. Yet the governor was sometimes permitted to hold these two other offices (seeCadi;Imām).

Such a system led naturally to wholesale conversions to Islam; and the consequent decline in revenue, combined with large donations of lands by Othman, the third caliph, to his own family, gradually broke it down. The first patriarchal period of conquest, unearned wealth and the simple life—called by Moslems the period of the “four rightly guided caliphs,” and very happily by Sachau,ein mönchisches Imperium—passed rapidly into the genuinely Arab empire of the Omayyads, with whom came an immediate development of organization in the state. The constructive genius in this was Moawiya, the first Omayyad caliph. Under him the old simplicity vanished. A splendid and ceremonious court was maintained at Damascus. A chamberlain kept the door; a bodyguard surrounded the caliph, and even in the mosque the caliph, warned by the murder of Othman and of Ali, prayed in a railed-off enclosure. The beginning of the seclusion of the caliph had come, and he no longer walked familiarly among his fellow Moslems. This seclusion increased still further when the administration of the state passed by delegation into other hands, and the caliph himself became a sacrosanct figure-head, as in the case of the later Abbasids; when theories of semi-divine nature and of theocratic rule appeared, as in the case of the Fatimites; and finally when all the elaborate court ritual of Byzantium was inherited by the Ottoman sultans.

But Moawiya I. was still a very direct and personal ruler. He developed a post-system for the carrying of government despatches by relays, and thus received secret information from and kept control of the most distant provinces. He established a sealing-bureau by which state papers were secured against change. He dealt arbitrarily with the revenues of the state and the pensions of the Moslems. Governors of provinces were given a much freer hand, and were required to turn over to the central treasury their surplus revenue only. As they were either conquerors or direct successors of conquerors they had an essentially military government, and were really semi-independent rulers, unhampered except by direct action of the caliph, acting on information sent by the postmaster, who was his local spy. Being thus the heads of armies of occupation, they were not necessarily charged with the control of religious ritual and of justice. These, like every other function, inhered in the office of the caliph and he generally appointed in each province independent cadis over the courts and imāms to be in charge of religious services. Yet the governor was sometimes permitted to hold these two other offices (seeCadi;Imām).

Further administrative developments came with the Abbasids. They created a new city, Bagdad, between the Tigris and the Euphrates, where the three races, Syrian, Arab and Persian, met and sought with Bagdad as a capital to consolidate the empire. The Arab empire, it is true, had passed away with the Omayyads; yet there might be a chance to create a world-empire of all the Moslem peoples. But not even the genius and administrative skill of the early Abbasids could hold together that unwieldy mass. The semi-independent provinces soon became fully independent, or at most acknowledged the caliph as a spiritual head and paid a nominal tribute. His name might stand on the coinage and prayers be offered for him in the Friday service, the two signs of sovereignty to this day in Islam. With this crumbling of the empire went a more elaborate organization; bureaus took the place of principles and of the energy of individual rulers. As the system of Moslem law was built on that of the Roman codes, so was the machinery of administration on that of Persia. And with the Abbasids the chance of the Persians had come. Abū ‘l-Abbās, the first Abbasid caliph, was the firstThe Vizierate.to appoint a vizier (wazīr, “helper,” so Aaron is wazīr to Moses in the Koran), a confidential minister to advise him and come between him and the people. Advisers the caliphs had had before; but not a definite adviser with this name. He must, we are told, have a strain of the ruler in him and a strain of the people to be able to work with both. He must know how to be acceptable; fidelity and truthfulness are his capital; sagacity, firmness, generosity, clemency, dignity, effectiveness of speech are essential. It is plain that the vizier became as important as the caliph. But Abū ’l-Abbās was fortunate in early securing as his vizier the grandfather of the house of the Barmecides (q.v.). On this Persian family the fortunes of the Abbasids hung, and it secured for them and for Islam a short golden age, like that of the Antonines, until the jealous madness of Hārūn al-Rashīd cast them down. Thereafter the vizierate had many vicissitudes. Technically a vizier could be either limited or unlimited. The limited vizier had no initiative; he carried out the commands of the caliph. The unlimited vizier, often afterwards called the grand vizier, exercised full authority and was thealter egoof the caliph, to whom he was required only to report. Naturally the formal distinction is a later theorizing of history; for a weak ruler his vizier became absolute, for a strong ruler his vizier remained subordinate. Here, as with regard to all Moslem institutions, a marked distinction must be made between the historic facts and the speculative edifices raised by constitutional theorizers. Compare especiallyMahommedan Law. Until the time of Rāḍī (934-940) the vizierate thus fluctuated in importance. In that caliphate the vizier lost all authority, and in his place came theamīr al-omarā—equivalent to themajor domusof the Franks—the head of the Turkish bodyguard, in terror of whom the caliph now stood. When in 945 the Būyids captured Bagdad and the caliph became a purely spiritual sovereign, they took the title “vizier” for their own chief minister, and the caliphs retained only a secretary (seeCaliphate, C. § 22). Under the Seljuks, however, they regained their viziers and some real authority. Elsewhere, also the vizierate had its vicissitudes. Under the Mamelukes the vizier fell to be merely the court purveyor. Under the Omayyads of Spain the title was given to several responsible officers of the state, but their chief was calledḥājib, chamberlain. Under the Almohades the chamberlain was called vizier. In the modern Turkish empire the grand vizier (called generallyṣadr A‘ẓam) is the sultan’s representative in secular matters, and nominally stands between the sovereign and all the other officials. He is the president of the council of ministers, but Abd-ul Hamid II. deprived the office of almost all its importance.

Under the early Abbasids the four most important ministers were the chief cadi, the chief of police or head of the life guards, the minister of finance and the postmaster, who was the head of the system of information and espionage whichOther Ministers.covered the empire. But at different times the different bureaus varied greatly. Under Motawakkil we find the bureau of taxes and finance; bureau of the crown estates; bureau of state book-keeping; bureau of war,i.e.of hired troops; bureau which kept reckoning and control of the pensions of the clients and slaves of the ruling family; bureau of the post system; bureau of expenditures. But in spite of this elaborate system, no Moslem government has, except sporadically, been highly centralized. Provided the taxes are paid, a large measure of local autonomy has always been enjoyed by the country districts. Under the Abbasids almost the only exception was the necessarily centralized control of the irrigation system of the Tigris and Euphrates. And similarly elsewhere.In the case of all these offices, we have delegation by the caliph, under necessity, of his too heavy burdens. But one duty of an Oriental ruler he could not so easily lay aside. It had always to be possible for the oppressed to come into his presence and claim justice; he must sit in the gate and judge. Therefore, when the caliph found it necessary to delegate the ordinary administration of justice, he found it also necessary to set up a special court of oppressions, which developed, to a certain extent, into a court of appeals. The first to establish such a separate court was Abdalmalik the Omayyad(685-705), and his example was followed by the more vigorous of the caliphs up to the time of Mohtadī the Abbasid (869-870). If any other than the caliph presided over this court it had to be a man whose dignity, independence and authority commanded respect. He was not bound by strict rules of evidence, method and literal application of law as was the cadi. Rather, he applied a system of equity suited to the absolute source of authority which he represented.As the chief of police, mentioned above, was rather the head of the caliph’s bodyguard, there was also a police system after our ideas, but more thoroughgoing. Themuhtasibhad charge in the broadest sense of public order and morals in the streets, and had oversight as to weights, measures and adulterations; but had no right to interfere privately or enter houses save in the clearest and most necessary cases. He had a summary jurisdiction in all minor cases where no trial was necessary; but where witnesses and oaths entered the case must go to the cadi. Slaves and beasts of burden were under his guardianship; he prevented public scandals, such as the sale of wine; he regulated the public conduct of Jews and Christians. In the interest of public morals he had to find suitable husbands for widows and see that they did not marry before the legal time; questions of paternity also he had to investigate. The outdoor costume of the people he could regulate. It should, of course, be remembered that the canon law of Islam covers minutely all sides of life (seeMahommedan Law).

In the case of all these offices, we have delegation by the caliph, under necessity, of his too heavy burdens. But one duty of an Oriental ruler he could not so easily lay aside. It had always to be possible for the oppressed to come into his presence and claim justice; he must sit in the gate and judge. Therefore, when the caliph found it necessary to delegate the ordinary administration of justice, he found it also necessary to set up a special court of oppressions, which developed, to a certain extent, into a court of appeals. The first to establish such a separate court was Abdalmalik the Omayyad(685-705), and his example was followed by the more vigorous of the caliphs up to the time of Mohtadī the Abbasid (869-870). If any other than the caliph presided over this court it had to be a man whose dignity, independence and authority commanded respect. He was not bound by strict rules of evidence, method and literal application of law as was the cadi. Rather, he applied a system of equity suited to the absolute source of authority which he represented.

As the chief of police, mentioned above, was rather the head of the caliph’s bodyguard, there was also a police system after our ideas, but more thoroughgoing. Themuhtasibhad charge in the broadest sense of public order and morals in the streets, and had oversight as to weights, measures and adulterations; but had no right to interfere privately or enter houses save in the clearest and most necessary cases. He had a summary jurisdiction in all minor cases where no trial was necessary; but where witnesses and oaths entered the case must go to the cadi. Slaves and beasts of burden were under his guardianship; he prevented public scandals, such as the sale of wine; he regulated the public conduct of Jews and Christians. In the interest of public morals he had to find suitable husbands for widows and see that they did not marry before the legal time; questions of paternity also he had to investigate. The outdoor costume of the people he could regulate. It should, of course, be remembered that the canon law of Islam covers minutely all sides of life (seeMahommedan Law).

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

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

When it became impossible for the caliph to lead the people personally in prayer in the mosque, he delegated that part of his duties to another, hence called imām (q.v.). Naturally, then, the appointment of the imām would lie with theThe Imām.supreme ruler. This holds of the daily prayers in the principal mosque (al-masjid al-jāmi‘) supported by the ruler where the Friday service is held, but in the separate smaller mosques built by each community the community chooses its own imām. With regard to the Friday service, the schools of law disagree as to the necessity of the presence of an imām appointed by the chief ruler. But the imām should certainly make mention of the ruler in his sermon and pray for him. At the occasional prayers, such as those for rain, &c., the presence of an imām appointed by the ruler is not necessary. The imām appoints themuaddhin, the announcer of the hour of prayer from the minaret, and both have a claim on the state treasury.

Another office exercised when possible by the caliph, but very frequently delegated to some high dignitary, such as the heir to the caliphate or a prince, was the leadership of the pilgrimage caravan to Mecca and back. Sometimes this official, calledamīr-al-ḥajj, was appointed imām as well. He then led all the pilgrimage ceremonies at Mecca. When outside of towns where there was a cadi he exercised also over the caravan the rights of a judge.

Mahommedan law (q.v.) is treated separately. Here, again, as judging is a duty of the caliph, a cadi is the delegate, or, when appointed by a vizier or governor, a delegate of his delegate. He examines into disputes brought before him andThe Cadi.enforces his judgments, he names administrators of the estates of minors, the insane, &c.; he supervises thewaqfproperty of mosques and schools in his district and inspects highways and public buildings; he watches over the execution of wills; he inflicts the due legal penalties for apostasy, neglect of religious duties, refusal to pay taxes, theft, adultery, outrages, murder; he can inflict the penalties of imprisonment, fine, corporal punishment, death; if there is no imām, he can perform his duty, as in fact can anyone who has the requisite knowledge. But it should be noticed that all this holds only of the un-europeanized Moslem state.

For the existence of an army in Islam, there are two grounds, the holy war (jihād,q.v.) against unbelievers without the state and the suppression of rebellion within. Under the ordinance of Omar the entire community was preservedThe Army.and used as a weapon for the subduing of the world to Islam, and every able-bodied male Moslem was theoretically a fighting man, part of the national militia. This army was divided into corps situated in the conquered lands, as armies of occupation, where they eventually came to form military colonies in great camp-cities. The occupied countries had to support them, and they were bound to render military service at any time. But as the ideal of Omar broke down before facts the use of mercenary and slave troops finally increased; although there has always continued in Moslem armies acting against unbelievers a proportion of volunteers not paid a fixed wage but subsidized by the state from the poor-rate and alms funds. The generals were appointed by the caliph, and had either unlimited authority to act as his representatives, concluding peace, acting as cadi and imām, distributing booty; or were restricted within limits,e.g.to simple leading of the troops and carrying on military operations. They, in turn, appointed their subordinates; this principle of giving a head full powers and full responsibility was very generally applied in Islam. It was controlled of course by the espionage of the postal system. As war by a Moslem power is essentially sacred war, the regulations ofjihadmust be considered here. Unbelievers must first be invited to embrace Islam and, if they follow a sacred book and are not idol-worshippers, are given a choice between (a) becoming Moslems; or (b) submitting to the Moslems and entering on a treaty with them of protection and tribute; or (c) fighting. If they accept Islam, their lives, families and property are secure, and they form henceforth part of the Moslem community. The ability of Islam to create a common feeling between highly different races is one of its most striking features. If they submit and enter on treaty relations, they pay a poll-tax, for which their personal safety is assured, and assume a definitely inferior status, having no technical citizenship in the state, only the condition of protected clients (dhimmīs). If they elect to fight, the door of repentance is open, even when the armies are face to face. But after defeat their lives are forfeit, their families are liable to slavery, and all their goods to seizure. It is open to the sovereign either to put them to death; or to enslave them; or to give them their liberty; or to exchange them for ransom or against Moslem prisoners. The sovereign will choose that which is best for Islam. As for their families and wealth, the sovereign can release them only with consent of the army that has captured them. Apostates must be put to death. Four-fifths of the booty after a battle goes to the conquering army.

The technical art of war seems to have been little studied among Moslems; they have treatises on archery but very little upon tactics. Their writers recognize, however, the essential difference between the European and Persian methods of charging in solid lines and holding the ground stubbornly, and the Arab and Berber method of flying attacks and retreats by clouds of cavalry. Therefore, one explained, the custom grew of using a mass of European mercenaries as a fixed nucleus and rallying-point. The early Moslem armies, too, had used the solid, unyielding charge, which may have been the secret of their success. For one of the greatest puzzles of history is the cause which changed the erratic, untrustworthy swarms of Arab horsemen with their childish strategy into the ever-victorious legions of the first caliphs. They certainly learned rapidly. Byzantium and Persia taught them the use of military engines and the entrenched camp. Before that they had been, at the best, single knights with mail-shirt, helmet, sword and lance. Bowmen, too, they used, but the principal use of the bow seems to have come with the Turks.

The glory of Moslem education was its university system, which fed the higher learning and did not serve everyday needs. Its primary system was very poor, almost non-existent; and technical education has never been recognized inEducation.Islam. Primary teachers were despised as ignorant and foolish. Apparently, if we may trust the many stories of how ignorant men set up for themselves, there was no control of them by the state. Their pupils were young only; they taught the rudiments of reading, Koran, catechism, prayer, writing and arithmetic, but very little of the latter. Technical education was given by the gilds through their apprentice system, teaching mechanical arts and crafts. This was genuine instruction, but was not so regarded; it was looked upon rather as are the mysteries and secrets of operative masonry. It produced artisans of independent character, but not artists. Thus there was no distinction between architect and builder; there was no sculpture; and painting, so far as it went, was like carving, a craft. All Moslem university education, like all Moslemscience, revolved round theology. There were, apparently, only two outstanding exceptions to this rule, the academy of Mamun (813-833) at Bagdad, and the hall of wisdom of the Fatimites at Cairo (1004-1171); both of these are explained by their environment. From the earliest times, independent scholars instructed classes in mosques—the common places of meeting for the community—and gave their pupils personal certificates. Their subjects were the reading and interpretation of the Koran; the body of traditions from the Prophet; the thence deduced system of theology; the canon law. But the interpretation of the Koran involved grammatical and lexicographical studies of early Arabic, and hence of the early Arabic literature. Theology came to involve metaphysical and logical studies. Canon law required arithmetic and mensuration, practical astronomy, &c. But these last were strictly ancillary; the object of the instruction was primarily to give knowledge of value for the life of the next world, and, secondarily, to turn out theologians and lawyers. Medicine was in Jewish and Christian hands; engineering, architecture, &c., with their mathematical bases, were crafts. Then this instruction was gradually subsidized and organized by the state, or endowed by individuals. How early this took place is uncertain. But the individual teacher, with his certificate, remained the object of the student; there was nothing corresponding to our general degrees. Thirdly, educational institutions came to be equipped with scholarships of money or in kind for the students. The first instance of this is generally ascribed to Nishapur (Naisābūr) in 1066; but it soon became general in the system and afforded a means of control and centralization. A final, and most important, characteristic was the wide journeying of the students “in search of knowledge.” Aided by Arabic as the universal language of learning, students journeyed from teacher to teacher, and from Samarkand to the Atlantic, gathering on their way hundreds of personal certificates. Scholars were thus kept in touch all over the Moslem world, and intellectual unity was maintained.

To the democratic equality of Islam, in which the slave of to-day may be the prime minister of to-morrow, there is one outstanding exception. The descendants of the Prophet and of his relatives (the family of Hāshim)The Sayyids.formed and form a special class, held in social reverence, and guarded from contamination and injury. These are thesayyids(lords), and genealogical registers of them are carefully preserved. They are of all degrees of wealth and poverty, but are guarded legally frommésallianceswith 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 Māwardī’sAḥkām, trans. in part by Ostrorog; McG. de Slane’s trans. of Ibn Khaldūn,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, seeHarem.

(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,sharī‘a) 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 nothingad remwas 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 (ḥadīth) 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 Muwaṭṭa’ of Malik ibn Anas (d. 795), acorpus jurisbased 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 theMusnadof Aḥmad ibn Ḥanbal. The other kind, calledMuşannaf(classified), contains traditions arranged in chapters according to their subject matter. That of Bukhārī 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-Ḥajjāj, who paid less attention to legal aspects and more to minute accuracy. There are many others of more or less acceptance and canonicity. Bukhārī’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 whereverthey 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 theResponsa prudentiumof 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 theResponsaand became plain equity, in the English sense, and one school (the Hanifite) established as a basis the right of preference (istiḥsān) even when the analogy of the code dictated otherwise; while another (the Malikite) used the termistiṣlāḥ, “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 (qiyās), 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 greatdébâcle. Theancien régime, a semi-monkish, theocratic empire, went down, and the Omayyad dynasty, kings and princes of the old Arab type, took its place (seeCaliphate, 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 (ḥarām); but designated actions also as required (farḍ,wājib), recommended (mandūb,mustaḥabb), indifferent (jā‘iz,mubāḥ), disliked (makrūh). 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 Abū Ḥanīfa (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 (qiyās); 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. Abū Ḥanīfa reduced it to a subjective formula. Under such conditions he claimed the right of preference (istiḥsān) 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 ‘Abbāsids 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 Abū Ḥanīfa, Malik ibn Anas, the founder of the Malikite school, died at Medina. In many points his situation was precisely opposite to that of Abū Ḥanīfa, 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 Abū Ḥanīfa, 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 (istiṣlāḥ); 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 (ijmā‘), 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, theMuwaṭṭa’, 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 theistiḥsānof Abū Ḥanīfa and theistiṣlāḥofMalik 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 Shāfi‘īte; secondly, an extremely literal school for which ash-Shāfi‘ī did not go far enough, and which has now vanished; and thirdly, the Ḥanbalite school, still surviving in small numbers, more moderately traditional than the last.The school founded by ash-Shāfi‘ī (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 (ijmā‘) 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 Shāfi‘īte 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 (qiyās), 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-Shāfi‘ī—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 Dā‘ūd uẓ-Ẓāhirī, “David the Literalist,” born three or four years before the death of ash-Shāfi‘ī, 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 principlejurare 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 Ḥanbalite school, was founded by the scholars of Aḥmad ibn Ḥanbal after his death in 885. He himself would never have revolted against his master, ash-Shāfi‘ī, 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 Ṭabarī, the historian and commentator, have had dreams that they, too, might join the Four Imāms (seeImām) 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 Shāfi‘ītes; in Upper Egypt and in north Africa, west of Egypt, they are Malikites; only the Wahhābis (q.v.) in central Arabia are Ḥanbalites. 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 (seeCadi), 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 Shī‘ite canon law is dealt with separately, but some mention of two outstanding sects is here in place. The Ibāḍites (seeMahommedan 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 Iḅād 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 Ibāḍite communities at Oman, Zanzibar and the Mzab in southern Algeria. At all these places they, the last descendants of the Khārijites, 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 Wahhābis. They are really Ḥanbalites, 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 Ẓāhirites.

Twenty-eight years after Abū Ḥanīfa, Malik ibn Anas, the founder of the Malikite school, died at Medina. In many points his situation was precisely opposite to that of Abū Ḥanīfa, 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 Abū Ḥanīfa, 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 (istiṣlāḥ); 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 (ijmā‘), 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, theMuwaṭṭa’, 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 theistiḥsānof Abū Ḥanīfa and theistiṣlāḥofMalik 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 Shāfi‘īte; secondly, an extremely literal school for which ash-Shāfi‘ī did not go far enough, and which has now vanished; and thirdly, the Ḥanbalite school, still surviving in small numbers, more moderately traditional than the last.

The school founded by ash-Shāfi‘ī (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 (ijmā‘) 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 Shāfi‘īte 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 (qiyās), 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-Shāfi‘ī—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 Dā‘ūd uẓ-Ẓāhirī, “David the Literalist,” born three or four years before the death of ash-Shāfi‘ī, 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 principlejurare 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 Ḥanbalite school, was founded by the scholars of Aḥmad ibn Ḥanbal after his death in 885. He himself would never have revolted against his master, ash-Shāfi‘ī, 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 Ṭabarī, the historian and commentator, have had dreams that they, too, might join the Four Imāms (seeImām) 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 Shāfi‘ītes; in Upper Egypt and in north Africa, west of Egypt, they are Malikites; only the Wahhābis (q.v.) in central Arabia are Ḥanbalites. 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 (seeCadi), 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 Shī‘ite canon law is dealt with separately, but some mention of two outstanding sects is here in place. The Ibāḍites (seeMahommedan 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 Iḅād 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 Ibāḍite communities at Oman, Zanzibar and the Mzab in southern Algeria. At all these places they, the last descendants of the Khārijites, 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 Wahhābis. They are really Ḥanbalites, 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 Ẓāhirites.

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 Wahhābis and Ibāḍites 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 recordeddecisions. As in religion the faiths of the conquered peoples were thinly veneered with Moslem phrases, so in law there grew up a customary code (‘ādāt) 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”; seeMahommedan Institutions); later, his will was codified as in the Turkish statute law (qawānīn) derived from various European codes. Thus there has grown up in almostevery 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.

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