KNUT VIK0R

Between God and

the Sultan
A History of Islamic Law

FOUNDATION
O O S

CONTENTS
page

Preface
Introduction: Does Islamic Law Exist?
Where is the Islamic law?
The methods for studying Islamic law

1
4
12

Part I. THE THEORY OF THE LAW

From Practice to Method
Law or tradition
Al-Shafii

20
21
27

The Koran and Sunna as Sources

Four sources or three levels
The Koran
Hadith
Contradictions between Koran and hadith

31
31
32
38
47

Elaborating the Sources: Qiyas and Ijtihad

Ijtihad
Qiyas
Ill
How did the qiyas methodology arise?
Istihsan: to ignore a qiyas rule
The illa and hukm become the rule

53
53
54
58
64
65
70

Getting Social Sanction: Ijma and Authorization

Ijma
How is ijma established?
Ijma and the revealed Texts
Shafi i's model

73
74
78
85
87

Part IL THE APPLICATION OF THE LAW

The Four Schools of Law
Putting the law in writing

89
89

ix

Contents
The schools
Four consensuses
What the dates mean

94
104
110

Law Beyond the Four Schools

'Proto-Sunni' currents
Ibadism
Shiism
The principles of Shii law

114
114
120
121
129

The Court and the Law: the Muftis and Legal

Development
Fatwas
The mufti, the state and the courts
The process of ifta
From ijtihad to fatwa
Taqlid and the rules of the school
Manuals and supplementary works
Other sources for legal practice

140
141
143
147
151
156
161
165

The Court and its Judge: the Role of the Qadi

Competence and organization
Standard procedure
Practices of the court

168
170
173
180

Part III. THE HISTORY OF THE LAW

10

The Court and the State

Non-Sharia courts: Mazalim and shurta
Hisba and the muhtasib
Sharia and siyasa courts

185
189
195
198

11

Law and Courts in the Ottoman Empire

Kanun and Sharia
The qadis
The muftis and the seyhl-islam
Ottoman law in the provinces: Tunisia

206
207
209
212
217

12

Islamic Law in the Modern Period

222
222

Changes after 1800

Contents

13

xi

From kanun to national laws

Reforms in the Ottoman empire
Egypt
Algeria
Africa: Islamic law in British colonies
Traditional states in a modern world

228
229
231
242
246
250

Implementing the Sharia

Islamism
Sharia in practice today: Saudi Arabia
Iran
Sudan
Sharia through siyasa

254
257
264
269
273
278

Part IV. SOME AREAS OF THE LAW

14

Criminal Law
The field of the law
Hudud
Murder and blood money
Apostasy
Methods of punishment

280
280
282
287
291
296

15

Family Law
Marriage
Divorce
Children
Inheritance
Modern adaptations

299
300
309
316
318
321

16

Economy, taxes and property

Islamic banking
Taxes
Waqf

326
328
332
339

Conclusion

345

Glossary
Bibliography
Index

349
363
381