Part 14
All these schools of law administer a scheme of duties, which, as has already been remarked, comes nearest to the canon law of the Roman Church, and which for centuries has had only a partial connexion with the real legal systems of the Moslem peoples. Among the Wahhabis and Ibadites alone is it the whole of law. Elsewhere, since the Omayyad period, its courts have been in great part pushed aside by others, and its scheme has come to be regarded as an expression of impossible theory, to be realized at best with the coming of the millennium. The causes and methods of this change call now for detailed notice.
As Islam spread beyond the desert and the conditions in which the life of Mahomet and his companions had been cast, it came to regions, climates, customs, where the Arabian usages no longer held. Not only were the prescripts of Medina ill adapted to the new conditions; the new people had legal usages of their own to which they clung and which nothing could make them abandon. It was rather the Moslem leaders who were compelled to abandon their ideas and for the sake of the spread of Islam to accept and incorporate much that was diametrically opposed to the original legislation either of the Koran or of Mahomet's recorded decisions. As in religion the faiths of the conquered peoples were thinly veneered with Moslem phrases, so in law there grew up a customary code (_`adat_) for each country, differing from every other, which often completely obscured and annulled the prescriptions of the canon law. The one was an ideal system, studied and praised by the pious learned; the other was the actual working of law in the courts.
But besides the obstinate adherence of various peoples to their old paths, the will of individual rulers was a determining factor. When these ceased to be saints and students of divine things, and came to be worldly statesmen and opportunists, followers of their own objects and pleasures, no system could hold which set a limit to their authority. The Oriental ruler must rule and judge on his own initiative, and the schools of canon law tended to reduce everything to an academic fixedness. There thus arose a new and specific statute law, emanating from the sovereign. At first he judged in the gate as seemed good in his eyes and as was his right and duty (cf. "court of oppressions"; see MAHOMMEDAN INSTITUTIONS); later, his will was codified as in the Turkish statute law (_qawanin_) derived from various European codes. Thus there has grown up in almost every Moslem country at least two systems of courts, the one administering this canon law, and taking cognisance of private and family affairs, such as marriage, divorce, inheritance, its officials also giving rulings on purely personal religious questions, such as details of the ritual law, the law of oaths and vows, &c.; the other, the true law courts of the land, administering codes based on local custom and the decrees of the local rulers.
A rift almost as important entered the legal life of the Moslem lands on another side. Non-Moslem communities, settled in Moslem territory, have been uniformly permitted to administer and judge themselves according to their own customs and laws. Save when they come into direct contact and conflict with Moslems, they are left to themselves with a contemptuous tolerance. The origin of this attitude in Islam appears to be threefold: (i) The Islam of theory cannot conceive of a mixed state; it takes account, only, of a state containing none but Moslems, and its ideal is that the whole world will, in the end, form such a state. In practice, then, Moslems try to shut their eyes to the existence of non-Moslems in their midst and make no provision for them until compelled. That a non-Moslem should have the same civil position as a Moslem is unthinkable. (ii) This, of course, produces an attitude of extreme contempt. The only citizens are Moslems and all others are to be looked down upon and left to themselves. What they do or think among themselves does not matter; they are outside the ring-fence of Islam. (iii) A different, but equally important, cause is the Moslem indolence. When the Arabs conquered, they knew that they must administer the conquered lands, and they, very wisely, sought help from the machinery which they found in operation. But besides the ordinary organization of the state, they found also various ecclesiastical organizations, Christian and Jewish, and to these they gave over the administration of the non-Moslem sections of the community, making their rabbis and bishops their responsible heads and the links of contact with the Moslem rulers. They, unquestionably, found the same method in use by the Byzantine government; but in Moslem hands it went so far as to make a number of little states (_millet_, _milal_) within the state and effectually to preclude the possibility of ever welding all the inhabitants of the land into one corporate life.
But this indolence, when applied to resident aliens, had consequences still more serious, because external as well as internal. Following the same method of leaving the unbeliever to settle his affairs for himself, the European merchant, living and trading in the East, was put first by usage and finally by treaty under the jurisdiction and control of his own consul. Thus there grew up the extra-territorial law of the capitulations and conventions, by which the sanctity of the person and household of an ambassador is extended to every European. And this in turn, has reacted on the status of the non-Moslem subject races, and has come to be the indirect but chief support on which they lean. Through it, an element has developed which makes it practically impossible for a Moslem state to introduce legal changes even remotely affecting its non-Moslem population, alien or subject, without the consent of the European embassies. Any change may be upset by their refusal to accept it as incompatible with the capitulations and conventions. The embassies have thus, as interpreters of a part, at least, of the constitution, come to hold a position remarkably, if absurdly, like that of the Supreme Court of the United States (see Young, _Corps de droit Ottoman, passim_).
There may be said, then, in short, to be three elements in the legal life of a Moslem state: the sacred and fixed canon law of Islam; the civil law, based on the usages of the different peoples, Moslem and non-Moslem, and on statutes going back to the will of rulers; the international law of the capitulations, with a contractual sanction of its own. The hope for the future in Islam, there can be little doubt, lies in the principle of the agreement of the Moslem people, with its conception of catholic unity, and its ability, through that unity, to make and abrogate laws. As the Moslem peoples advance, their law can, thus, advance with them, and the grasp of the dead hand of the canon law be gradually and legally released.
See I. Goldziher, _Muhammedanische Studien_, I. and II. (Halle a.S., 1889-1890); _Zahiriten_ (Leipzig, 1884); E. Sachau, _Zur ältesten Geschichte des muhammedanischen Rechts_ (Vienna Akad., 1870) and _Muhammedanisches Recht_ (Stuttgart and Berlin, 1897); Snouck Hurgronje, review of preceding in _Z.D.M.G._ liii. 125 seq. and "Le droit musulman" (_Rev. de l'hist. des religions_, xxxvii. 1 seq. and 174 seq.); Juynboll, _Handleiding tot de Kennis von de mohammedaansche Wet_ (Leiden, 1903); Von Kremer, _Culturgeschichte des Orients unter den Chalifen_, i. 470 seq. (Vienna, 1875-1877); Hughes, _Dictionary of Islam_, pp. 285 seq. (London, 1896); D. B. Macdonald, _Development of Muslim Theology_, &c., pp. 65 seq. (New York, 1903); Bukhari, _Les Traditions islamiques traduites ... par O. Houdas et W. Marcel_ (Paris, 1906); N. B. E. Bailie, _Digest of Moohummadan Law_ (2 vols., London, 1875-1887). A good bibliography appeared in the _Bulletin of the New York Public Library_ for January 1907. (D. B. Ma.)
MAHOMMEDAN RELIGION. The Mahommedan religion is generally known as _Islam_--the name given to it by Mahomet himself--and meaning the resigning or submitting oneself to God. The participle of the same Arabic verb, _Muslim_ (in English usually spelt Moslem), is used for one who professes this religion. The expression "Mahommedan religion" has arisen in the West probably from analogy with "Christian religion," but is not recognized as a proper one by Moslem writers. Islam claims to be a divinely revealed religion given to the world by Mahomet, who was the last of a succession of inspired prophets. Its _doctrine_ and _practices_ are to be found in (i) the Book of God--the Koran--which was sent down from the highest heaven to Gabriel in the lowest, who in turn revealed it in sections to Mahomet; (2) the collections of tradition (_hadith_) containing the sayings and manner of life (_sunna_) of the Prophet; (3) the use of analogy (_qiyas_) as applied to (i) and (2); and (4) the universal consent (_ijma'_) of the believers. The _worship_ of Islam consists in (1) the recital of the creed; (2) the recital of the ordained prayers; (3) the fast during the month of Ramadhan; (4) alms-giving; (5) the _hajj_, the pilgrimage to Mecca. The _theology_ of Islam finds its first public expression among the orthodox in the teaching of al-Ash`ari (d. after 932), but had its real beginning among the sects that arose soon after the death of Mahomet.
Islam is the latest of the so-called world-religions, and as several of the others were practised in Arabia at the time of Mahomet, and the Prophet undoubtedly borrowed some of his doctrines and some of his practices from these, it is necessary to enumerate them and to indicate the extent to which they prevailed in the Arabian world.
_Relations with Other Religions._--The religions practised in Arabia at the time of Mahomet were heathenism, Judaism, Christianity, and Zoroastrianism.
i. _Heathenism_ was the religion of the majority of the Arabs. In the cities of south Arabia it was a survival from the forms represented in the Sabaean, Minaean and Himyaritic inscriptions of south Arabia (see ARABIA: _Antiquities_). The more popular form current among the nomads is known very imperfectly from the remains of pre-Islamic poetry and such works as the _Kitab ul-Asnam_ contained in Yaqut's geography, from Shahrastani's work on the sects, and from the few references in classical writers. From these we have mostly names of local deities (cf. J. Wellhausen, _Reste arabischen Heidentums_, 2nd ed., Berlin, 1897) and ancient religious customs, which remained in part after the introduction of Islam (cf. W. Robertson Smith, _The Religion of the Semites_, Edinburgh, 1889, and _Kinship and Marriage in Early Arabia_, Cambridge, 1885). From these sources we learn that Arabian religion was a nature-worship associated with fetishism. Sun, moon and stars were worshipped, some tribes being devoted to the worship of special constellations. Certain stones, wells and trees were regarded as sacred and as containing a deity. Many (perhaps most) tribes had their own idols. Hobal was the chief god of the Ka`ba in Mecca with its sacred stone, but round him were grouped a number of other tribal idols. It was against this association (_shirk_) of gods that Mahomet inveighed in his attempt to unify the religion and polity of the Arabs. But there were features in this heathenism favourable to unity, and these Mahomet either simply took over into Islam or adapted for his purpose. The popularity of the Ka`ba in Mecca as a place of resort for worshippers from all parts of Arabia led Mahomet not only to institute the _hajj_ as a duty, but also to take over the customs connected with the heathen worship of these visits, and later to make Mecca the _qibla_, i.e. the place to which his followers turned when they prayed. The name of Allah, who seems to have been the god of the Koreish (cf. D. S. Margoliouth, _Mohammed_, p. 19, London, 1905), was accepted by Mahomet as the name of the one God, though he abandoned the corresponding female deity Al-lat.
2. _Judaism_ had long been known in Arabia at the time of the Prophet. Whether Hebrews settled in Arabia as early as the time of David (cf. R. Dozy, _Die Israeliten zu Mecca_, Leipzig, 1864), or not, is of little importance here as Judaism cannot be said to have existed until the end of the 5th century B.C. The Seleucid persecutions and the political troubles that ended with the fall of Jerusalem (A.D. 70) probably sent many Jews to Arabia. In the 5th and 6th centuries the history of south Arabia and of Nejran is largely that of the strife between Jews and Christians. In the north-west the Jews possessed Tema, Khaibar, Yathrib (Medina), Fadak, and other smaller settlements. In these they lived as self-contained communities, not seeking to proselytize but working at their trades, especially concerned with money and jewelry. Mahomet seems to have expected their help in his proclamation of monotheism, and his first _qibla_ was Jerusalem. It was only when they refused to accept him as prophet that he turned in anger against them. They had, however, supplied him with much material from the Old Testament, and the stories of creation, the patriarchs and early kings and prophets occur continually in the Koran, told evidently as they were recited by the common people and with many mistakes caused by his own misunderstanding.
3. _Christianity_, though later than Judaism, had a sure footing in Arabia. It had suffered persecution in Nejran and had been supported in the south by the Abyssinian invasions. The kingdom of Hira was largely Christian; the same is true of the north Arabian tribes of Bakr and Taghlib, and east of the Jordan and on the Syrian boundary as well as in Yemama Christianity had made progress. Pre-Islamic literature contains many allusions to the teaching and practices of Christianity. Of the time of its introduction little is known; little also of the form in which it was taught, save that it came from the Eastern Church and probably to a large extent through Monophysite and Nestorian sects. Tradition says that Mahomet heard Christian preaching at the fair of Ukaz, and he probably heard more when he conducted the caravans of Khadija. Gospel stories derived apparently from uncanonical works, such as the Gospel of the Nativity, occur in the Koran. The asceticism of the monks attracted his admiration. A mistaken notion of the Trinity was sharply attacked by him. It is curious that his followers in the earliest times were called by the heathen Arabs, Sabians (q.v.), this being the name of a semi-Christian sect. In the time of the Omayyads Christianity led to some of the earliest theological sects of Islam (see below).
4. _Zoroastrianism_ was known to the Arab tribes in the north-east, but does not seem to have exercised any influence in Mecca or Medina except indirectly through Judaism in its angelology. As soon, however, as the armies of Islam conquered Mesopotamia it began to penetrate the thought and practices of Islam (see below).
_Sources of Authority._--Islam, as we have said, is founded on: (1) the Koran; (2) the tradition or rather the _sunna_ (manner of life of Mahomet) contained in the tradition (_Hadith_); (3) _ijma`_; the universal agreement; (4) _qiyas_ (analogy).
1. The _Koran_[1] (properly _Qur'an_ from _qara'a_ to collect, or to read, recite) is the copy of an uncreated original preserved by God (see below), sent down from the seventh heaven to Gabriel in the first heaven, and revealed to Mahomet in sections as occasion required. These revelations were recited by the Prophet and in many cases written down at once, though from ii. 100 it would seem that this was not always the case. God is the speaker throughout the revelations. It seems probable that the whole Koran was written in Mahomet's lifetime, but not brought together as a whole or arranged in order.
As it exists now the Koran consists of 114 chapters called _suras_ (from _sura_, a row of bricks in a wall, a degree or step). The first is the _Fatiha_ (opening), which occupies the place of the Lord's Prayer in Christianity. The others are arranged generally in order of length, the longest coming first, the shortest (often the earliest in date) coming at the end. Certain groups, however, indicated by initial unvowelled letters, seem to have been kept together from the time of the Prophet. At the head of each _sura_ is a title, the place of its origin (Mecca or Medina) and the number of its verses (_ayat_) together with the formula, "In the name of God the Merciful, the Compassionate" (except in _sura 9_). For liturgical purposes the whole book is divided into 60 sections (_ahzab_) or into 30 divisions (_ajza_), each subdivided into a number of prostrations (_ruk`a_ or _sajda_). The origin of the collected and written Koran is due to Omar, who in the caliphate of Abu Bekr pointed out that many possessors of _suras_ were being slain in the battles of Islam and their property lost, that there was a danger in this way that much of the revelation might disappear, and that men were uncertain what was to be accepted as genuine revelation. Accordingly Zaid ibn Thabit who had been secretary to Mahomet, was commissioned to collect all he could find of the revelation. His work seems to have been simply that of a collector. He seems to have done his work thoroughly and made a copy of the whole for Abu Bekr. The collection was thus chiefly a private matter, and this copy passed after Abu Bekr's death into the hands of Omar, and after his death to Hafsa, daughter of Omar, a widow of Mahomet. In the caliphate of Othman it was discovered that there were serious differences between the readings of the Koran possessed by the Syrian troops and those of the Eastern soldiers, and Othman was urged to have a copy prepared which should be authoritative for the Moslem world. He appointed Zaid ibn Thabit and three members of the tribe of Koreish (Quraish) to do the work. Each of these made a copy of Abu Bekr's collection, carefully preserving Koreishite forms of words. How far the text was amended by the help of other copies is doubtful; in any case the mode of procedure was undoubtedly very conservative. The four similar manuscripts were sent, one each to Medina, Cufa (Kufa), Basra and Damascus, and an order was issued that all differing copies should be destroyed. In spite of the personal unpopularity of Othman this recension was adopted by the Moslem world and remains the only standard text. A few variant readings and differences of order of the _suras_ in the collections of Ubay ibn Ka`b and of Ibn Mas`ud were, however, known to later commentators. The only variants after the time of Othman were owing to different possible ways of pronouncing the consonantal text. These are usually of little importance for the meaning. As the text is now always vowelled, variations are found in the vowels of different copies, and the opinions of seven leading "readers" are regarded as worthy of respect by commentators (see Th. Nöldeke, _Geschichte des Qorans_, pp. 279 seq., Göttingen, 1860). Various characteristics enable one to establish with more or less certainty the relative chronological order of the _suras_ in the Koran, at any rate so far as to place them in the first or second Meccan period or that of Medina. The form of the sentences is a guide, for the earliest parts are usually written in the _saj`_ form (see ARABIA: _Literature_). The expressions used also help; thus the "O ye people" of the Meccan period is replaced in the Medina _suras_ by "O ye who believe." The oaths in the first Meccan period are longer, in the second shorter, and are absent in the Medinan. In the earliest period the style is more elevated and passionate. Occasionally the time of origin is determined by reference to historical events. In accordance with such principles of criticism two leading scholars, Nöldeke (_loc. cit._) and H. Grimme (in his _Mohammed Zweiter Teil_. _Einleitung in den Koran. System der koranischen Theologie_, Münster, 1895), have arranged the _suras_ as follows:--
_Order of Suras in Koran._
NÖLDEKE.
_Mecca._
1st to 5th yr. (a). 96. 74. 111. 106. 108. 104. 107. 102. 105. 92. 90. 94. 93. 97. 86. 91. 80. 68. 87. 95. 103. 85. 73. 101. 99. 82. 81. 53. 84. 100. 79. 77. 78. 88. 89. 75. 83. 69. 51. 52. 56. 70. 55. 112. 109. 113. 114. 1.
5th and 6th yr. (b). 54. 37. 71. 76. 44. 50. 20. 26. 15. 19. 38. 36. 43. 72. 67. 23. 21. 25. 17. 27. 18.
7th yr. to Flight (c). 32. 41. 45. 16. 30. 11. 14. 12. 40. 28. 39. 29. 31. 42. 10. 34. 35. 7. 46. 6. 13.
_Medina._
2. 98. 64. 62. 8. 47. 3. 61. 57. 4. 65. 59. 33. 63. 24. 58. 22. 48. 66. 60. 110. 49. 9. 5.
GRIMME.
_Mecca_, (1). [2] In old saj` form: 111. 107. 106. 105. 104. [103=]. 102. 101. 100. 99. 108. 96. 95. 94. 93. 92. 91. 90. 89. 88. [87=]. 86. [85=]. [84=]. 83. 82. [81.=] 80. 79. [78=]. 77. [76=]. 75. [74=]. [73=]. 70. 69. 68. 114. 113. 36. 55. 54. [53=]. 52. 51. 50. 15. [22=]. [14=].
(2). In loosened _saj`_ form: 46. 72. 45. 44. 41. 97. 40. 39. 38. 37. 36. 35. 34. 32. 31. 67. 30. [29=]. 28. 27. 26. 71. 25. 20. 23. 43. 21. 19. 1. 42. 18. 17.
_Medina._ [16=]. 13. 12. 11. 10. [7=]. 6. 98. (112. 109).
From the Flight to Badr. [2=]. 62. 5_(15.88.108-120). 47 and some interpolations in Meccan _suras_.
From Badr to Ohod 8. 24. 59.
From Ohod to capture of Mecca. 3. 29_(1-12). 4. 57. 64. 61. 60. 58. 65. 33. 63. 49. 110. 48. 5_(1-14). 66. 9_(1-24).
After capture of Mecca. 9_(25-124).
Theology.