Legal practice in the first century of Islam

The period up to the year A.D. 750 witnessed the transformation of Islam from a small religious community in Arabia to a vast military empire. Within the span of a century the Islamic empire had embraced a great complexity of races, cultures and religions. Little imagination is needed to appreciate the tremendous problems of administrative organization which faced the Arab rulers as a result of the military conquests.

As long as Muhammad was alive he was naturally regarded as the ideal person to settle disputes. Later generations ascribed to Muhammad a great corpus of legal decisions. For some thirty years after the death of Muhammad in 632 Medina remained the focal point of Muslim activity. Here the vital issue was that of succession to the political authority of Muhammad. At first it was natural that the influence of those most closely associated with him should prevail, and the office of Caliph – “successor” to the Prophet – was held in succession by four of Muhammad’s most intimate companions: Abu-Bakr, Umar, Uthman and Ali.

Upon the Caliphs and their advisers fell the duty of further implementing the Qur’anic provisions in the same spirit as their former leader. Once again instructive examples of this activity are provided by the subject of inheritance. To Ali is ascribed the device of proportionally reducing the fractional shares allotted by the Qur’an when these add up to more than a unity. Probably the most striking illustration of the conflict between the old and the new orders of society is reflected in the celebrated Donkey case. The deceased had left a husband, mother, two full brothers and two uterine brothers. Umar, in accordance with the rule of first satisfying the Qur’anic shares, gave the husband 2 shares, the mother 6 and the uterine brothers 3, thus exhausting the estate and leaving nothing for the residuary heirs, the full brothers. Since then was no dispute about the rights of the husband and the mother the case resolved itself into a straightforward competition for the 3 residue between the heirs of the old customary law and the new Qur’anic heirs, and Umar had preferred the claims of the latter. The full brothers later appealed against the decision on the ground that at least they had the same mother as the deceased and therefore possessed the very the same quality of relationship which was the exclusive basis of the uterine brothers’ right of inheritance. According to the logic of this argument, Umar allowed them to share equally with the uterine brothers in the 3.

Naturally enough the Caliphs alone had the power of positive legislation. Such power seems occasionally to have been exercised during the Medinan period by way of a supplement to the Qur’an – to lay down, for example, the penalty for wine-drinking. This was fixed, apparently, at forty lashes by Abu-Bakr, and later at eighty lashes by Ali, latter drawing a rough parallel with the false accusation of unchastity for which the Qur’an fixed the same penalty.

In 661 A.D. the Umayyad dynasty was founded. From their seat of government at Damascus the Empire builders wielded their political power in the name of Islam; but while the Medinan Caliphs had been the servants of the religion the Umayyads were its masters.

The basic policy of the Umayyads was the preservation of the existing administrative structure in the provinces. Umayyad practice absorbed many concepts and institutions of foreign origin. The legal status of non-Muslim subjects in Islam was modeled on the position of the non-citizen groups in the Eastern Roman Empire. The Jewish and Christian communities paid a poll tax in return for the guarantee of protection and the preservation of their rights under their own personal law administered by their rabbinical and ecclesiastical tribunals.

Among the army of officials created by the Umayyad administration was the qadi, a judge of a special kind. Like all other officials he was the delegate of the local governor and had the particular task of settling disputes. In the early days we find the chief police and the Master of the Treasury acting as judges. Not until towards the end of the Umayyad period, it would appear, were judges exclusively concerned with judicial business. By the end of the Umayyad period the judges had advanced far from their original position as official arbitrators. They had become an integral and important part of administrative machine, no longer controlled, by themselves controlling, the customary law and by their decisions adapting it to meet the changing circumstances of society.

Under the Umayyads the basic material of the local customary law had been modified by the elaboration of the Qur’anic rules, overlaid by a corpus of administrative regulations and infiltrated by elements of foreign legal systems.

(a) Answer the following questions:

1) What was the basic policy of the Umayyads like?

2) What were the duties of the judges?

(b) Match the following English expressions with their Russian equivalents. Make sentences of your own using the word combinations in the table.

1) customary law 2) a poll tax 3) false accusation 4) uterine brothers 5) residue 6) a share 7) a deceased 8) Treasury

a) ложное обвинение b) братья по материнской линии c) подушный налог d) казначейство e) наследство, очищенное от долгов и завещательных отказов f) доля, акция g) скончавшийся h) обычное право

TASK 3. Study the text below, making sure you fully comprehend it. Where appropriate, consult English-Russian dictionaries and/or other references & source books on law.