"The Muslim world and its legal system"

Author: Attorney-at-Law Mihai Cuc.

The research of the Muslim legal system introduces a European or American jurist into a legal world entirely different from his own, different by its origins, its structure, but most of all by its mentality. The jurist who approaches the Islamic laws through the eyes by which he/she sees a European inspired legal system, by which he/she seeks to understand the relations between the legal institutions using a European method of interpretation, the one who expects to find in it a system formed by institutions logically organized promoted through the traditional origins of the European legal systems, that jurist risks to get a distorted understanding of the Islamic laws. In this respect, one of the best experts in Muslim legal system used a very plastic expression at the beginning of his vast treaty upon the subject: "You cannot enter Islam like into a mill; it is necessary, for this, a previous preparation".
The Islam (from the root œselam meaning obedience to God) is above all a religion, then a state and, finally, a culture are the words of a French jurist.
Still, the Islam is more likely a "jurism" than a legal system, meaning a sum of rules of conduct originating in Coran (the holly book of the Muslims), these rules bearing obviously a religious character. The sanctions for breeching these rules are generally not written in the Coran; theoretically that being the position of sinner into which the Muslim who disobeys fells.
The religion of Islam is formed, from this point of view, from two parts: a theology which establishes the dogmas and Sharia (the way to be followed) which is formed by the rules that that should guide the behavior of every believer. The Sharia does not make any distinction between the religious and non-religious rules of conduct (for example, there is no distinction between a rule that tells you how to treat your friend and one who tells you when to pray).
The most developed part in this body of rules is the one regarding the persons (leaving aside the provisions upon the organizing the State, the relations between the State and citizens and penal law).
In Muslim legal system not the individual, but the family constitutes the most important legal subject (the family being a natural association for one’s entire life). When a person dies another harem (family) appears, without any continuity with the former harem. The purpose of marriage is procreation and to this end a man may have up to four wives at the same time. Also, the repudiation of the wife is fairly easy which leads in the opinion of the jurist R. Charles to a polygamy in time. The marriage is a contract that is concluded not

between husband and wife, but between their parents, the object of this contract being the bride, on one hand, and a sum of money (mahr) on the other hand.
The rules that emerge directly from the Coran (called œpio) are insufficient to cover all aspects of life thus most Muslim states have borrowed some European laws to cover the missing parts. It must be said though that there is no general set of rules, the Muslim world is composed from many cults. These cults were constituted in the second century from Hegira (the great travel of Mohammed from Medina to Mecca) and can be divided in two categories: Sunni (or œorthodox cults) and the cults that the Sunnis consider to be heretic. Examples of Sunni cults:
- the Hannelit cult (existing in Turkey, Trans-Caucasian regions, Syria, Afghanistan, Pakistan, India and Egypt);
- the Malekit cult (existing in Maghreb and western Africa);
- the Safeit cult (the Kurds, Malaysia, and eastern Africa);
 

- the Hannbalit cult (Saudi Arabia).
An example of non-sunni cults is the œShya, dominant in Iran and some parts of Irak.
If the Coran does not offer an answer to a specific problem, a judgement by analogy (œquivas) is to be used. This method has such an importance in the Muslim legal system that it is considered a real origin of laws. The Muslim jurist will refuse any abstraction, systematization, codification, will avoid generalization or even definitions thus the basic divisions of a legal system (the dividing the law into different types, such as civil law, penal law etc.) are non-existent in the Islamic law.          

For solving new problems a Muslim judge will appeal to quivas, which should not be understood as an interpretation of the law, but as new solutions for new problems which have not been previously decided upon.
According with the Islamic beliefs all rules have appeared by divine revelation: were communicated to the Prophet Mohammed by Archangel Gabriel. By order of the Caliph Abu-Bekr, the teachings of The Prophet were gathered by one of His disciples into a book that was called Coran (meaning story). The Coran has 6,200 verses grouped into 114 chapters. From these, only 5-600 verses contain rules of conduct for the Muslim believers. In addition to these there is Sunna = the way of being and the behaviour of The Prophet and His disciples, which the Muslim believers consider as a guide. Each of the principles that forms the Sunna is the object of a Hadith.
The Islam world does not recognize any supreme religious authority to be in charge of interpreting the sacred texts. In these conditions the unity of interpretation is insured by Idjma the third origin of the Muslim laws, which offers to the Muslim believer the criterion by which he/she could recognize the exact meaning of the sacred texts. This criterion is the unanimous agreement of the Muslim community, two sentences of The Prophet being the foundation for this method:
1st Sentence: My community will never agree upon an error (from a Hadith).
2nd Sentence: The one who follows another path than the one of the right-believers will go to Inferno (from Coran).
Thus the Idjma is the unanimous agreement of all mudjaheddin (or mujtahedin, being those Muslims who have the required qualities for expressing a personal opinion). This way the Idjtihad is realised (idjtihad = the activity for accomplishing the requirements of Coran). The Idjma is transmitted orally, from generation to generation.
The importance of the Idjma is enormous. Idjma represents today the only dogmatic base of the Islamic legal system. The Coran and the Sunna are only historical bases. Not in Coran and the collection of traditions will search the contemporary Muslim judge the foundations of his decisions, but in the books where are exposed the solutions consecrated by Idjma (said the jurist Edouard Lambert). We cannot agree entirely with his conclusions because Mr. Lambert failed to realize that the Coran and Sunna are behind every solution of the Idjma, but it is true that Idjma is invoked more frequently. The situation is similar with the one existing in the English common law where  although there are statute laws issued upon various aspects the judges prefer to invoke other decisions that were issued upon the problems they must solve.

At last, it must be said that this article does not intend to be a comprehensive presentation of the Islamic legal system; it merely wants to explain some basic institutions of the traditional Muslim laws. The Romans said that ubi societas ibi jus (where is a society there is a law) and from this principle if anyone reading this article has found in it even a little help in understanding this great and old culture, then the authors objective is achieved.