Click to View

114

DEVELOPMENT OF JURISPRUDENCE

ruler, expressed often in what are called Qanuns, statutes. Thus, in Turkey at the present day, besides the codices of canon law, there is an accepted and authoritative corpus of such Qanuns. It is based on the Code Napoleon and administered by courts under the Minister of Justice. This is the nearest approach in Islam to the development by statute, which comes last in Sir Henry Maine's analysis of the growth of law. The court guided by these Qanuns decides all matters of public and criminal law, all affairs between man and man. Such is the legal situation throughout the whole Muslim world, from Sulu to the Atlantic and from Africa to China. The canon lawyers, on their side, have never admitted this to be anything but flat usurpation. There have not failed some even who branded as heretics and unbelievers those who took any part in such courts of the world and the devil. They look back to the good old days of the rightly guided Khalifas, when there was but one law in Islam, and forward to the days of the Mahdi when that law will be restored. There, between a dead past and a hopeless future, we may leave them. The real future is not theirs. Law is greater than lawyers, and it works in the end for justice and life.

Finally, it may be well to notice an important and necessary modification which holds as to the above statement that a Muslim may choose any one of the four schools and may then follow its rules. As might be expected, geographical influences weigh overwhelmingly in this choice. Certain countries are Hanifite or Shafi'ite; in each, adherents of the other

DISTRIBUTION OF SCHOOLS

115

sects are rare. This geographical position may be given roughly as follows: central Asia, northern India, and the Turks everywhere are Hanifite. Lower Egypt, Syria, southern India and the Malay Archipelago are Shafi'ite. Upper Egypt and North Africa west of Egypt are Malikite. Practically, only the Wahhabites in central Arabia are Hanbalites. Further, the position holds in Islam that the country, as a whole, follows the legal creed of its ruler, just as it follows his religion. It is not only cuius regio eius religio, but cuius religio eius lex. Again and again, a revolution in the state has driven one legal school from power and installed another. Yet the situation occurs sometimes that a sovereign finds his people divided into two parties, each following a different rite, and he then recognizes both by appointing Qadis belonging to both, and enforcing the decisions of these Qadis. Thus, at Zanzibar, at present, there are eight Ibadite judges and two Shafi'ite, all appointed by the Sultan and backed by his authority. On the other hand, the Turkish government, ever since it felt itself strong enough, has thrown the full weight of its influence on the Hanifite side. In almost all countries under its rule it appoints Hanifite judges only; valid legal decisions can be pronounced only according to that rite. The private needs of non-Hanifites are met by the appointment of salaried Muftis—givers of fatwas, or legal opinions—of the other rites.

In the above sketch there have been of necessity two considerable omissions. The one is of Shi'ite and the other of Ibadite law. Neither seems of sufficient importance to call for separate treatment.

Click to View

Go To Start: WWW.BIBLE.CA