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Religion

종교 탐방

IV. THE CULTURE OF ISLAM

 
 

1. Islamic Law, Shari'ah

Total and unqualified submission to the will of Allah (God) is the fundamental tenet of Islam: Islamic law is therefore the expression of Allah's command for Muslim society and, in application, constitutes a system of duties that are incumbent upon a Muslim by virtue of his religious belief. Known as the Shari'ah (literally, "the path leading to the watering place"), the law constitutes a divinely ordained path of conduct that guides the Muslim toward a practical expression of his religious conviction in this world and the goal of divine favour in the world to come.

1) NATURE AND SIGNIFICANCE OF ISLAMIC LAW

Muslim jurisprudence, the science of ascertaining the precise terms of the Shari'ah, is known as fiqh(literally "understanding"). The historical process of the discovery of Allah's law (see below) was regarded as completed by the end of the 9th century when the law had achieved a definitive formulation in a number of legal manuals written by different jurists. Throughout the medieval period this basic doctrine was elaborated and systematized in a large number of commentaries, and the voluminous literature thus produced constitutes the traditional textual authority of Shari'ah law.

In classical form the Shari'ah differs from Western systems of law in two principal respects. In the first place the scope of the Shari'ah is much wider, since it regulates man's relationship not only with his neighbours and with the state, which is the limit of most other legal systems, but also with his God and his own conscience. Ritual practices, such as the daily prayers, almsgiving, fasting, and pilgrimage, are an integral part of Shari'ah law and usually occupy the first chapters in the legal manuals. The Shari'ah is also concerned as much with ethical standards as with legal rules, indicating not only what man is entitled or bound to do in law, but also what he ought, in conscience, to do or refrain from doing. Accordingly, certain acts are classified as praiseworthy (mandub), which means that their performance brings divine favour and their omission divine disfavour, and others as blameworthy (makruh), which means that omission brings divine favour and commission divine disfavour; but in neither case is there any legal sanction of punishment or reward, nullity or validity. The Shari'ah is not merely a system of law, but a comprehensive code of behaviour that embraces both private and public activities. (see also Index: comparative law, ethics)

The second major distinction between the Shari'ah and Western legal systems is the result of the Islamic concept of law as the expression of the divine will. With the death of the Prophet Muhammad in 632, communication of the divine will to man ceased so that the terms of the divine revelation were henceforth fixed and immutable. When, therefore, the process of interpretation and expansion of this source material was held to be complete with the crystallization of the doctrine in the medieval legal manuals, Shari'ah law became a rigid and static system. Unlike secular legal systems that grow out of society and change with the changing circumstances of society, Shari'ah law was imposed upon society from above. In Islamic jurisprudence it is not society that moulds and fashions the law, but the law that precedes and controls society. (see also Index: social control)

Such a philosophy of law clearly poses fundamental problems of principle for social advancement in contemporary Islam. How can the traditional Shari'ah law be adapted to meet the changing circumstances of modern Muslim society? This is now the central issue in Islamic law. (See below Reform of Shari'ah law).

2) HISTORICAL DEVELOPMENT OF SHARI'AH LAW

For the first Muslim community established under the leadership of the Prophet at Medina in 622, the Qur`anic revelations laid down basic standards of conduct. But the Qur`an is in no sense a comprehensive legal code. No more than 80 verses deal with strictly legal matters; while these verses cover a wide variety of topics and introduce many novel rules, their general effect is simply to modify the existing Arabian customary law in certain important particulars.

During his lifetime Muhammad, as the supreme judge of the community, resolved legal problems as they arose by interpreting and expanding the general provisions of the Qur`an, and the same ad hoc activity was carried on after his death by the caliphs (temporal and spiritual rulers) of Medina. But the foundation of the Umayyad dynasty in 661, governing from its centre of Damascus a vast military empire, produced a legal development of much broader dimensions. With the appointment of judges, or qadis, to the various provinces and districts, an organized judiciary came into being. The qadiswere responsible for giving effect to a growing corpus of Umayyad administrative and fiscal law; and since they regarded themselves essentially as the spokesmen of the local law, elements and institutions of Roman-Byzantine and Persian-Sasanian law were absorbed into Islamic legal practice in the conquered territories. Depending upon the discretion of the individual qadi, decisions would be based upon the rules of the Qur`an where these were relevant; but the sharp focus in which the Qur`anic laws were held in the Medinian period had become lost with the expanding horizons of activity.

i) Development of different schools of law.

A reaction to this situation arose in the early 8th century when pious scholars, grouped together in loose, studious fraternities, began to debate whether or not Umayyad legal practice was properly implementing the religious ethic of Islam. Actively sponsored by the 'Abbasid rulers, who came to power in the mid-8th century pledged to build a truly Islamic state and society, the activities of the jurists (faqihplural fuqaha`) in these early schools of law marked the real beginning of Islamic jurisprudence. Their aim was to Islamize the law by reviewing the current legal practice in the light of the Qur`anic principles and then on this basis adopting, modifying, or rejecting the practice as part of their ideal scheme of law. (see also Index: professional education)

Of the many early schools of law the two most important were those of the Malikis in Medina and the Hanafis in al-Kufah, named after two outstanding scholars in the respective localities, Malik ibn Anas and Abu Hanifah. Inevitably the Maliki and Hanafi doctrines, as they were then being recorded in the first compendiums of law, differed considerably from each other, not only because free juristic speculation was bound to produce varying results but also because the thought of the scholars was conditioned by their different social environments. A deep conflict of juristic principle emerged within the schools between those who maintained that outside the terms of the Qur`an scholars were free to use their reason (ra`y) to ascertain the law and those who insisted that the only valid source of law outside the Qur`an lay in the precedents set by the Prophet himself. (see also Index: Malikiyah, Hanafiyah)

The jurist ash- Shafi'i (died 820) aimed to eliminate these schisms and produce greater uniformity in the law by expounding a firm theory of the sources from which the law must be derived. Ash-Shafi'i's fundamental teaching was that knowledge of the Shari'ah could be attained only through divine revelation found either in the Qur`an or in the divinely inspired traditions (sunnah) of the Prophet as ascertained through authentic reports (Hadith). Human reason in law should be strictly confined to the process of analogical deduction, or qiyas--problems not specifically answered by the divine revelation were to be solved by applying the principles upon which closely parallel cases had been regulated by the Qur`an or sunnah

Shafi'i's insistence upon the importance of the sunnah as a source of law produced a great activity in the collection and classification of Hadiths, particularly among his own supporters, who formed the Shafi'i school, and the followers of Ahmad ibn Hanbal (died 855) who formed the Hanbali school. Muslim scholarship maintained that the classical compilations of Hadiths--especially those of Bukhari (died 870) and Muslim (died 875)--constituted an authentic record of the Prophet's precedents. The general view of Western orientalists, however, is that a considerable part of the sunnah represents the views of later jurists fictitiously ascribed to the Prophet to give the doctrine a greater authority.

ii) Later developments.

Shafi'i's thesis formed the basis of the classical theory of the roots of jurisprudence (usul al-fiqh), which crystallized in the early 10th century. Juristic "effort" to comprehend the terms of the Shari'ah is known as ijtihadand legal theory first defines the course that ijtihad must follow. In seeking the answer to a legal problem the jurist must first consult the Qur`an and the sunnah. Failing any specific solution in this divine revelation he must employ analogy (qiyas) or certain subsidiary principles of reasoning--istihsan (equitable preference) and istislah (the public interest). The legal theory then evaluates the results of ijtihad on the basis of the criterion of ijma' (consensus). As an attempt to define Allah's law, the ijtihad of individual scholars could result only in a tentative conclusion termed zann ("conjecture"). But where a conclusion became the subject of unanimous agreement by the qualified scholars, it became a certain (yaqin) and infallible expression of Allah's law.

Two major effects flowed from this classical doctrine of ijma'. It served first as a permissive principle to admit the validity of variant opinions as equally probable attempts to define the Shari'ah. Second, it operated as a restrictive principle to ratify the status quo; for once the ijma' had cast an umbrella authority not only over those points that were the subject of a consensus but also over existing variant opinions, to propound any further variant was to contradict the infallible ijma' and therefore tantamount to heresy.

Ijma' set the final seal of rigidity upon the doctrine, and from the 10th century onward independent juristic speculation ceased. In the Arabic expression, "the door of ijtihad was closed." Henceforth jurists were muqallids, or imitators, bound by the doctrine of taqlid("clothing with authority" i.e., unquestioned acceptance) to follow the doctrine as it was recorded in the authoritative legal manuals.

Shari'ah law is a candidly pluralistic system, the philosophy of the equal authority of the different schools being expressed in the alleged dictum of the Prophet: "Difference of opinion among my community is a sign of the bounty of Allah." But outside the four schools of Sunni, or orthodox, Islam stand the minority sects of the Shi'ah and the Ibadis whose own versions of the Shari'ah differ considerably from those of the Sunnis. Shi'i law in particular grew out of a fundamentally different politico-religious system in which the rulers, or imams, were held to be divinely inspired and therefore the spokesmen of the Lawgiver himself. Geographically, the division between the various schools and sects became fairly well defined as the qadis' courts in different areas became wedded to the doctrine of one particular school. Thus Hanafi law came to predominate in the Middle East and the Indian subcontinent; Maliki law in North, West, and Central Africa; Shafi'i law in East Africa, the southern parts of the Arabian peninsula, Malaysia, and Indonesia; Hanbali law in Saudi Arabia, Shi'i law in Iran and the Shi'i communities of India and East Africa; Ibadi law in Zanzibar, 'Uman, and parts of Algeria. (see also Index: Ibadiyah)

Although Shari'ah doctrine was all-embracing, Islamic legal practice has always recognized jurisdictions other than that of the qadis. Because the qadis' courts were hidebound by a cumbersome system of procedure and evidence, they did not prove a satisfactory organ for the administration of justice in all respects, particularly as regards criminal, land, and commercial law. Hence, under the broad head of the sovereign's administrative power (siyasah), competence in these spheres was granted to other courts, known collectively as mazalim courts, and the jurisdiction of the qadis was generally confined to private family and civil law. As the expression of a religious ideal, Shari'ah doctrine was always the focal point of legal activity, but it never formed a complete or exclusively authoritative expression of the laws that in practice governed the lives of Muslims.

3) THE SUBSTANCE OF TRADITIONAL SHARI'AH LAW

Shari'ah duties are broadly divided into those that an individual owes to Allah (the ritual practices or 'ibadat) and those that he owes to his fellow men (mu'amalat). It is the latter category of duties alone, constituting law in the Western sense, that is described here.

i) Penal law.

Offenses against the person, from homicide to assault, are punishable by retaliation (qisas), the offender being subject to precisely the same treatment as his victim. But this type of offense is regarded as a civil injury rather than a crime in the technical sense, since it is not the state but only the victim or his family who have the right to prosecute and to opt for compensation or blood money (diyah) in place of retaliation. (see also Index: criminal law)

For six specific crimes the punishment is fixed (hadd): death for apostasy and for highway robbery; amputation of the hand for theft; death by stoning for extramarital sex relations (zina) where the offender is a married person and 100 lashes for unmarried offenders; 80 lashes for an unproved accusation of unchastity (qadhf) and for the drinking of any intoxicant.

Outside the hadd crimes, both the determination of offenses and the punishment therefore lies with the discretion of the executive or the courts.

ii) Law of transactions.

A legal capacity to transact belongs to any person "of prudent judgment" (rashid), a quality that is normally deemed to arrive with physical maturity or puberty. There is an irrebuttable presumption of law (1) that boys below the age of 12 and girls below the age of 9 have not attained puberty, and (2) that puberty has been attained by the age of 15 for both sexes. Persons who are not rashid, on account of minority, mental deficiency, simplicity, or prodigality, are placed under interdiction: their affairs are managed by a guardian and they cannot transact effectively without the guardian's consent.

The basic principles of the law are laid down in the four root transactions of (1) sale (bay'), transfer of the ownership or corpus of property for a consideration; (2) hire (ijarah), transfer of the usufruct (right to use) of property for a consideration; (3) gift (hibah), gratuitous transfer of the corpus of property, and (4) loan ('ariyah), gratuitous transfer of the usufruct of property. These basic principles are then applied to the various specific transactions of, for example, pledge, deposit, guarantee, agency, assignment, land tenancy, partnership, and waqf foundations. Waqf is a peculiarly Islamic institution whereby the founder relinquishes his ownership of real property, which belongs henceforth to Allah, and dedicates the income or usufruct of the property in perpetuity to some pious or charitable purpose, which may include settlements in favour of the founder's own family. (see also Index: property law)

The Islamic law of transactions as a whole is dominated by the doctrine of riba. Basically, this is the prohibition of usury, but the notion of riba was rigorously extended to cover, and therefore preclude, any form of interest on a capital loan or investment. And since this doctrine was coupled with the general prohibition on gambling transactions, Islamic law does not, in general, permit any kind of speculative transaction the results of which, in terms of the material benefits accruing to the parties, cannot be precisely forecast.

iii) Family law.

A patriarchal outlook is the basis of the traditional Islamic law of family relationships. Fathers have the right to contract their daughters, whether minor or adult, in compulsory marriage. Only when a woman has been married before is her consent to her marriage necessary; but even then the father, or other marriage guardian, must conclude the contract on her behalf. In Hanafi and Shi'i law, however, only minor girls may be contracted in compulsory marriage, and adult women may conclude their own marriage contracts, except that the guardian may have the marriage annulled if his ward has married beneath her social status. (see also Index: marriage law)

Husbands have the right of polygamy and may be validly married at the same time to a maximum of four wives. Upon marriage a husband is obliged to pay to his wife her dower, the amount of which may be fixed by agreement or by custom; and during the marriage he is bound to maintain and support her provided she is obedient to him, not only in domestic matters but also in her general social activities and conduct. A wife who rejects her husband's dominion by leaving the family home without just cause forfeits her right to maintenance.

But it is in the traditional law of divorce that the scales are most heavily weighted against the wife. A divorce may be effected simply by the mutual agreement of the spouses, which is known as khul' when the wife pays some financial consideration to the husband for her release; and according to all schools except the Hanafis a wife may obtain a judicial decree of divorce on the ground of some matrimonial offense--e.g., cruelty, desertion, failure to maintain--committed by the husband. But the husband alone has the power unilaterally to terminate the marriage by repudiation ( talaq) of his wife. Talaq is an extrajudicial process: a husband may repudiate his wife at will and his motive in doing so is not subject to scrutiny by the court or any other official body. A repudiation repeated three times constitutes a final and irrevocable dissolution of the marriage; but a single pronouncement may be revoked at will by the husband during the period known as the wife's 'iddah, which lasts for three months following the repudiation (or any other type of divorce) or, where the wife is pregnant, until the birth of the child.

The legal position of children within the family group, as regards their guardianship, maintenance, and rights of succession, depends upon their legitimacy, and a child is legitimate only if it is conceived during the lawful wedlock of its parents. In Sunni law no legal relationship exists between a father and his illegitimate child; but there is a legal tie, for all purposes, between a mother and her illegitimate child. Guardianship of the person (e.g., control of education and marriage) and of the property of minor children belongs to the father or other close male, agnate relative, but the bare right of custody (hadanah) of young children, whose parents are divorced or separated, belongs to the mother or the female, maternal relatives.

iv) Succession law.

An individual's power of testamentary disposition is basically limited to one-third of his net estate (i.e., the assets remaining after the payment of funeral expenses and debts) and two-thirds of the estate passes to the legal heirs of the deceased under the compulsory rules of inheritance.

There is a fundamental divergence between the Sunni and the Shi'i schemes of inheritance. Sunni law is essentially a system of inheritance by male agnate relatives or 'asabah--i.e., relatives who, if they are more than one degree removed from the deceased, trace their connection with him through male links. Among the 'asabah, priority is determined by: (1) class, descendants excluding ascendants, who in turn exclude brothers and their issue, who in turn exclude uncles and their issue; (2) degree, within each class the relative nearer in degree to the deceased excluding the more remote; (3) strength of blood tie, the germane, or full blood, connection excluding the half blood, or consanguine, connection among collateral relatives. This agnatic system is mitigated by allowing the surviving spouse and a limited number of females and nonagnates--the daughter; son's daughter; mother; grandmother; germane, consanguine, and uterine sisters; and uterine brother--to inherit a fixed fractional portion of the estate in suitable circumstances. But the females among these relatives only take half the share of the male relative of the same class, degree, and blood tie, and none of them excludes from inheritance any male agnate, however remote. No other female or non-agnatic relative has any right of inheritance in the presence of a male agnate. Where, for example, the deceased is survived by his wife, his daughter's son, and a distant agnatic cousin, the wife will be restricted to one-fourth of the inheritance, the grandson will be excluded altogether, and the cousin will inherit three-fourths of the estate. (see also Index: patrilineage)

Shi'i law rejects the criterion of the agnatic tie and regards both the maternal and paternal connections as equally strong grounds of inheritance. In the Shi'i system the surviving spouse always inherits a fixed portion, as in Sunni law, but all other relatives, including females and nonagnates, are divided into three classes: (1) parents and lineal descendants; (2) grandparents, brothers and sisters, and their issue; (3) uncles and aunts and their issue. Any relative of class one excludes any relative of class two, who in turn excludes any relative of class three. Within each class the nearer in degree excludes the more remote, and the full blood excludes the half blood. While, therefore, a male relative normally takes double the share of the corresponding female relative, females and nonagnates are much more favourably treated than they are in Sunni law. In the case mentioned above, for example, the wife would take one-fourth, but the remaining three-fourths would go to the daughter's son, or indeed to a daughter's daughter, and not to the agnatic cousin.

Under Shi'i law the only restriction upon testamentary power is the one-third rule, but Sunni law goes further and does not allow any bequest in favour of a legal heir. Under both systems, however, bequests that infringe these rules are not necessarily void and ineffective; the testator has acted beyond his powers, but the bequest may be ratified by his legal heirs.

Further protection is afforded to the rights of the legal heirs by the doctrine of death sickness. Any gifts made by a dying person in contemplation of his death are subject to precisely the same limitations as bequests, and, if they exceed these limits, will be effective only with the consent of the legal heirs.

v) Procedure and evidence.

Traditionally, Shari'ah law was administered by the court of a single qadi, who was the judge of the facts as well as the law, although on difficult legal issues he might seek the advice of a professional jurist, or mufti. There was no hierarchy of courts and no organized system of appeals. Through his clerk (katib) the qadi controlled his court procedure, which was normally characterized by a lack of ceremony or sophistication. Legal representation was not unknown, but the parties would usually appear in person and address their pleas orally to the qadi. (see also Index: procedural law)

The first task of the qadi was to decide which party bore the burden of proof. This was not necessarily the party who brought the suit, but was the party whose contention was contrary to the initial legal presumption attaching to the case. In the case of an alleged criminal offense, for example, the presumption is the innocence of the accused, and in a suit for debt the presumption is that the alleged debtor is free from debt. Hence the burden of proof would rest upon the prosecution in the first case and upon the claiming creditor in the second. This burden of proof might, of course, shift between the parties several times in the course of the same suit, as, for example, where an alleged debtor pleads a counterclaim against the creditor.

The standard of proof required, whether on an initial, intermediate or final issue, was a rigid one and basically the same in both criminal and civil cases. Failing a confession or admission by the defendant, the plaintiff or prosecutor was required to produce two witnesses to testify orally to their direct knowledge of the truth of his contention. Written evidence and circumstantial evidence, even of the most compelling kind, were normally inadmissible. Moreover, the oral testimony (shahadah) had usually to be given by two male, adult Muslims of established integrity or character. In certain cases, however, the testimony of women was acceptable (two women being required in place of one man), and in most claims of property the plaintiff could satisfy the burden of proof by one witness and his own solemn oath as to the truth of his claim.

If the plaintiff or prosecutor produced the required degree of proof, judgment would be given in his favour. If he failed to produce any substantial evidence at all, judgment would be given for the defendant. If he produced some evidence, but the evidence did not fulfill the strict requirements of shahadah, the defendant would be offered the oath of denial. Properly sworn this oath would secure judgment in his favour; but if he refused it, judgment would be given for the plaintiff, provided, in some cases, that the latter himself would swear an oath.

In sum, the traditional system of procedure was largely self-operating. After his initial decision as to the incidence of the burden of proof, the qadi merely presided over the predetermined process of the law: witnesses were or were not produced, the oath was or was not administered and sworn, and the verdict followed automatically.

4) LAW IN CONTEMPORARY ISLAM

i) The scope of Shari'ah law and the mode of its administration.

During the 19th century the impact of Western civilization upon Muslim society brought about radical changes in the fields of civil and commercial transactions and criminal law. In these matters the Shari'ah courts were felt to be wholly out of touch with the needs of the time, not only because of their system of procedure and evidence but also because of the substance of the Shari'ah doctrine, which they were bound to apply. (see also Index: Westernization)

As a result, the criminal and general civil law of the Shari'ah was abandoned in most Muslim countries and replaced by new codes based upon European models with a new system of secular tribunals to apply them. Thus, with the notable exception of the Arabian peninsula, where the Shari'ah is still formally applied in its entirety, the application of Shari'ah law in Islam has been broadly confined, from the beginning of the 20th century, to family law, including the law of succession at death and the particular institution of waqf endowments.

Nor, even within this circumscribed sphere, is Shari'ah law today applied in the traditional manner. Throughout the Middle East generally Shari'ah family law is now expressed in the form of modern codes, and it is only in the absence of a specific relevant provision of the code that recourse is had to the traditionally authoritative legal manuals. In India and Pakistan much of the family law is now embodied in statutory legislation, and since the law is there administered as a case-law system, the authority of judicial decisions has superseded that of the legal manuals.

In most countries, too, the court system has been, or is being, reorganized to include, for instance, the provision of appellate jurisdictions. In Egypt and Tunisia the Shari'ah courts, as a separate entity, have been abolished, and Shari'ah law is now administered through a unified system of national courts. In India, and, since partition, inPakistan it has always been the case that Shari'ah law has been applied by the same courts that apply the general civil and criminal law. (see also Index: Indian law)

Finally, in many countries, special codes have been enacted to regulate the procedure and evidence of the courts that today apply Shari'ah law. In the Middle East documentary and circumstantial evidence are now generally admissible; witnesses are put on oath and may be cross-examined, and the traditional rule that evidence is only brought by one side and that the other side, in suitable circumstances, takes the oath of denial has largely broken down. In sum, the court has a much wider discretion in assessing the weight of the evidence than it had under the traditional system of evidence. In India and Pakistan the courts apply the same rules of evidence to cases of Islamic law as they do to civil cases generally. The system is basically English law, codified in the Indian Evidence Act, 1872.

ii) Reform of Shari'ah law.

Traditional Islamic family law reflected to a large extent the patriarchal scheme of Arabian tribal society in the early centuries of Islam. Not unnaturally certain institutions and standards of that law were felt to be out of line with the circumstances of Muslim society in the 20th century, particularly in urban areas where tribal ties had disintegrated and movements for the emancipation of women had arisen. At first this situation seemed to create the same apparent impasse between the changing circumstances of modern life and an allegedly immutable law that had caused the adoption of Western codes in civil and criminal matters. Hence, the only solution that seemed possible to Turkey in 1926 was the total abandonment of the Shari'ah and the adoption of Swiss family law in its place. No other Muslim country, however, has as yet followed this example. Instead, traditional Shari'ah law has been adapted in a variety of ways to meet present social needs.

From the outset the dominating issue in the Middle East has been the question of the juristic basis of reforms--i.e., granted their social desirability, their justification in terms of Islamic jurisprudential theory, so that the reforms appear as a new, but legitimate, version of the Shari'ah.

In the early stages of the reform movement, the doctrine of taqlid (unquestioning acceptance) was still formally observed and the juristic basis of reform lay in the doctrine of siyasah, or "government," which allows the political authority (who, of course, has no legislative power in the real sense of the term) to make administrative regulations of two principal types.

The first type concerns procedure and evidence and restricts the jurisdiction of the Shari'ah courts in the sense that they are instructed not to entertain cases that do not fulfill defined evidential requirements. Thus, an Egyptian law was enacted in 1931 that no disputed claim of marriage was to be entertained where the marriage could not be proved by an official certificate of registration, and no such certificate could be issued if the bride was less than 16 or the bridegroom less than 18 years of age at the time of the contract. Accordingly the marriage of a minor contracted by the guardian was still perfectly valid but would not, if disputed, be the subject of judicial relief from the courts. In theory the doctrine of the traditional authorities was not contradicted, but in practice an attempt had been made to abolish the institution of child marriage. The second type of administrative regulation was a directive to the courts as to which particular rule among existing variants they were to apply. This directive allowed the political authority to choose from the views of the different schools and jurists the opinion that was deemed best suited to present social circumstances. For example, the traditional Hanafi law in force in Egypt did not allow a wife to petition for divorce on the ground of any matrimonial offense committed by the husband, a situation that caused great hardship to abandoned or ill-treated wives. Maliki law, however, recognizes the wife's right to judicial dissolution of her marriage on grounds such as the husband's cruelty, failure to provide maintenance and support, and desertion. Accordingly, an Egyptian law of 1920 codified the Maliki law as the law henceforth to be applied by the Shari'ah courts.

By way of comparison, reform in the matters of child marriage and divorce was effected in the Indian subcontinent by statutory enactments that directly superseded the traditional Hanafi law. The Child Marriage Restraint Act, 1929, prohibited the marriage of girls below the age of 14 and boys below the age of 16 under pain of penalties; while the Dissolution of Muslim Marriages Act, 1939, modelled on the English Matrimonial Causes Acts, allowed a Hanafi wife to obtain judicial divorce on the standard grounds of cruelty, desertion, failure to maintain, etc.

In the Middle East, by the 1950s, the potential for legal reform under the principle of siyasah had been exhausted. Since that time the basic doctrine of taqlid has been challenged to an ever-increasing degree. On many points the law recorded in the medieval manuals, insofar as it represents the interpretations placed by the early jurists upon the Qur`an and the sunnahhas been held no longer to have a paramount and exclusive authority. Contemporary jurisprudence has claimed the right to renounce those interpretations and to interpret for itself, independently and afresh in the light of modern social circumstances, the original texts of divine revelation: in short to reopen the door of ijtihad that had been in theory closed since the 10th century.

The developing use of ijtihad as a means of legal reform may be seen through a comparison of the terms of the Syrian law of Personal Status (1953) with those of the Tunisian Law of Personal Status (1957) in relation to the two subjects of polygamy and divorce by repudiation (talaq).

As regards polygamy the Syrian reformers argued that the Qur`an itself urges husbands not to take additional wives unless they are financially able to make proper provision for their maintenance and support. Classical jurists had construed this verse as a moral exhortation binding only on the husband's conscience. But the Syrian reformers maintained that it should be regarded as a positive legal condition precedent to the exercise of polygamy and enforced as such by the courts. This novel interpretation was then coupled with a normal administrative regulation that required the due registration of marriages after the permission of the court to marry had been obtained. The Syrian Law accordingly enacts: "The qadi may withhold permission for a man who is already married to marry a second wife, where it is established that he is not in a position to support them both." Far more extreme, however, is the approach of the Tunisian reformers. They argued that, in addition to a husband's financial ability to support a plurality of wives, the Qur`an also required that co-wives should be treated with complete impartiality. This Qur`anic injunction should also be construed, not simply as a moral exhortation, but as a legal condition precedent to polygamy, in the sense that no second marriage should be permissible unless and until adequate evidence was forthcoming that the wives would in fact be treated impartially. But under modern social and economic conditions such impartial treatment was a practical impossibility. And since the essential condition for polygamy could not be fulfilled the Tunisian Law briefly declares: "Polygamy is prohibited."

With regard to talaq the Syrian law provided that a wife who had been repudiated without just cause might be awarded compensation by the court from her former husband to the maximum extent of one year's maintenance. The reform was once again represented as giving practical effect to certain Qur`anic verses that had been generally regarded by traditional jurisprudence as moral rather than legally enforceable injunctions--namely, those verses that enjoin husbands to "make a fair provision" for repudiated wives and to "retain wives with kindness or release them with consideration." The effect of the Syrian law, then, is to subject the husband's motive for repudiation to the scrutiny of the court and to penalize him, albeit to a limited extent, for abuse of his power. Once again, however, the Tunisian ijtihadconcerning repudiation is far more radical. Here the reformers argued that the Qur`an orders the appointment of arbitrators in the event of discord between husband and wife. Clearly a pronouncement of repudiation by a husband indicated a state of discord between the spouses. Equally clearly the official courts were best suited to undertake the function of arbitration that then becomes necessary according to the Qur`an. It is on this broad ground that the Tunisian law abolishes the right of a husband to repudiate his wife extrajudicially and enacts that: "Divorce outside a court of law is without legal effect." Although the court must dissolve the marriage if the husband persists in his repudiation, it has an unlimited power to grant the wife compensation for any damage she has sustained from the divorce--although in practice this power has so far been used most sparingly. In regard to polygamy and talaq therefore, Tunisia has achieved by reinterpretation of the Qur`an reforms hardly less radical than those effected in Turkey some 30 years previously by the adoption of the Swiss Civil Code.

In Pakistan a new interpretation of the Qur`an and sunnah was the declared basis of the reforms introduced by the Muslim Family Laws Ordinance of 1961, although the provisions of the Ordinance in relation to polygamy and talaq are much less radical than the corresponding Middle Eastern reforms, since a second marriage is simply made dependent upon the consent of an Arbitration Council and the effect of a husband's repudiation is merely suspended for a period of three months to afford opportunity for reconciliation.

Judicial decisions in Pakistan have also unequivocally endorsed the right of independent interpretation of the Qur`an. For example, in Khurshid Bibi v. Muhammad Amin (1967) the Supreme Court held that a Muslim wife could as a right obtain a divorce simply by payment of suitable compensation to her husband. This decision was based on the Court's interpretation of a relevant Qur`anic verse. But under traditional Shari'ah law this form of divorce, known as khul', whereby a wife pays for her release, is a contract between the spouses and as such entirely dependent upon the husband's free consent.

These are but a few examples of the many far-reaching changes that have been effected in the Islamic family law. But the whole process of legal reform as it has so far developed still involves great problems of principle and practice. A hard core of traditionalist opinion still adamantly rejects the validity of the process of reinterpretation of the basic texts of divine revelation. The traditionalists argue that the texts are merely being manipulated to yield the meaning that suits the preconceived purposes of the reformers, and that therefore, contrary to fundamental Islamic ideology, it is social desirability and not the will of Allah that is the ultimate determinant of the law.

As regards the practical effect of legal reform, there exists in many Muslim countries a deep social gulf between a Westernized and modernist minority and the conservative mass of the population. Reforms that aim at satisfying the standards of progressive urban society have little significance for the traditionalist communities of rural areas or for the Mulsim fundamentalists, whose geographical and social distribution crosses all apparent boundaries. It is also often the case that the qadis, through their background and training, are not wholly sympathetic with the purposes of the modernist legislators--an attitude often reflected in their interpretations of the new codes.

Such problems are, of course, inevitable in the transitional stage of social evolution in which Islam finds itself. But the one supreme achievement of jurisprudence over the past few decades has been the emergence of a functional approach to the question of the role of law in society. Jurisprudence has discarded the introspective and idealistic attitude that the doctrine of taqlid had imposed upon it since early medieval times and now sees its task to be the solution of the problems of contemporary society. It has emerged from a protracted period of stagnation to adopt again the attitude of the earliest Muslim jurists, whose aim was to relate the dictates of the divine will to their own social environment. It is this attitude alone that has ensured the survival of the Shari'ah in modern times as a practical system of law and that alone provides its inspiration for the future. (N.J.C.)

2. Social and ethical principles

1) FAMILY LIFE

A basic social teaching of Islam is the encouragement of marriage, and the Qur`an regards celibacy definitely as something exceptional--to be resorted to only under economic stringency. Thus, monasticism as a way of life was severely criticized by the Qur`an. With the appearance of Sufism, however, many Sufis preferred celibacy, and some even regarded women as an evil distraction from piety, although marriage remained the normal practice also with Sufis. (see also Index: rahbaniyah)

Polygamy, which was practiced in pre-Islamic Arabia, was permitted by the Qur`an, which, however, limited the number of simultaneous wives to four, and this permission was made dependent upon the condition that justice be done among co-wives. The Qur`an even suggests that "You shall never be able to do justice among women, no matter how much you desire." Medieval law and society, however, regarded this "justice" to be primarily a private matter between a husband and his wives, although the law did provide redress in cases of gross neglect of a wife. Right of divorce was also vested basically in the husband, who could unilaterally repudiate his wife, although the woman could also sue her husband for divorce before a court on certain grounds.

The virtue of chastity is regarded as of prime importance by Islam. The Qur`an advanced its universal recommendation of marriage as a means to ensure a state of chastity (ihsan), which is held to be induced by a single free wife. The Qur`an states that those guilty of adultery are to be severely punished with 100 lashes. Tradition has intensified this injunction and has prescribed this punishment for unmarried persons, but married adulterers are to be stoned to death. A false accusation of adultery is punishable by 80 lashes.

The general ethic of the Qur`an considers the marital bond to rest on "mutual love and mercy," and the spouses are said to be "each other's garments." The detailed laws of inheritance prescribed by the Qur`an also tend to confirm the idea of a central family--husband, wife, and children, along with the husband's parents. Easy access to polygamy (although the normal practice in Islamic society has always been that of monogamy) and easy divorce on the part of the husband led, however, to frequent abuses in the family. In recent times, most Muslim countries have enacted legislation to tighten up marital relationships. (see also Index: family law )

Rights of parents in terms of good treatment are stressed in Islam, and the Qur`an extols filial piety, particularly tenderness to the mother, as an important virtue. A murderer of his father is automatically disinherited. The tendency of the Islamic ethic to strengthen the immediate family on the one hand and the community on the other at the expense of the extended family or tribe did not succeed, however. Muslim society, until the encroachments upon it of modernizing influences, has remained basically one composed of tribes or quasi-tribes. Despite urbanization, tribal affiliations offer the greatest resistance to change and development of a modern polity. So strong, indeed, has been the tribal ethos that, in most Muslim societies, daughters are not given their inheritance share prescribed by the sacred law in order to prevent disintegration of the joint family's patrimony.

2) THE STATE

Because Islam draws no distinction between the religious and the temporal spheres of life, the Muslim state is by definition religious. The main differences between the Sunni, Khawarij, and Shi'i concepts of rulership have already been pointed out above. It should be noted that, although the office of the Sunni caliph (khalifah, one who is successor to the Prophet in rulership) is religious, this does not imply any functions comparable to those of the pope. The caliph has no authority either to define dogma or, indeed, even to legislate. He is the chief executive of a religious community, and his primary function is to implement the sacred law and work in the general interests of the community. He himself is not above the law and if necessary can even be deposed, at least in theory.

Sunni political theory is essentially a product of circumstance--an after-the-fact rationalization of historical developments. Thus, between the Shi'ah legitimism that restricts rule to 'Ali's family and the Khawarij democratism that allowed rulership to anyone, even to "an Ethiopian slave," Sunnism held the position that "rule belonged to the Quraysh" (the Prophet's tribe)--the condition that actually existed. Again, in view of the extremes represented by the Khawarij, who demanded rebellion against what they considered to be unjust or impious rule, and Shi'ites, who raised the imam to a metaphysical plane of infallibility, Sunnites took the position that a ruler has to satisfy certain qualifications but that rule cannot be upset on small issues. Indeed, under the impact of civil wars started by the Khawarij, Sunnism drifted to more and more conformism and actual toleration of injustice.

The first step taken in this direction by the Sunnites was the enunciation that "one day of lawlessness is worse than 30 years of tyranny." This was followed by the principle that "Muslims must obey even a tyrannical ruler." Soon, however, the sultan (ruler) was declared to be "shadow of God on earth." No doubt, the principle was also adopted--and insisted upon--that "there can be no obedience to the ruler in disobedience of God"; but there is no denying the fact that the Sunni doctrine came more and more to be heavily weighted on the side of political conformism. This change is also reflected in the principles of legitimacy. Whereas early Islam had confirmed the pre-Islamic democratic Arab principle of rule by consultation (shura) and some form of democratic election of the leader, those practices soon gave way to dynastic rule with the advent of the Umayyads. The shura was not developed into any institutionalized form and was, indeed, soon discarded. Soon the principle of "might is right" came into being, and later theorists frankly acknowledged that actual possession of effective power is one method of the legitimization of power.

In spite of this development, the ruler could not become absolute because a basic restraint was placed upon him by the Shari'ah law under which he held his authority and which he dutifully was bound to execute and defend. When, in the latter half of the 16th century, the Mughal emperor Akbar in India wanted to arrogate to himself the right of administrative-legal absolutism, the strong reaction of the orthodox thwarted his attempt. In general, the 'ulama` (religious scholars) jealously upheld the sovereign position of the Shari'ah against the political authority.

The effective shift of power from the caliph to the sultan was, again, reflected in the redefinition of the functions of the caliph. It was conceded that, if the caliph administered through wazirs (viziers or ministers) or subordinate rulers (amirs), it was not necessary for him to embody all the physical, moral, and intellectual virtues theoretically insisted upon earlier. In practice, however, the caliph was no more than a titular head from the middle of the 10th century onward, when real power passed to self-made and adventurous amirs and sultans, who merely used the caliph's name for legitimacy.

3) EDUCATION

Muslim educational activity began in the 8th century, primarily in order to disseminate the teaching of the Qur`an and the sunnah of the Prophet. The first task in this endeavor was to record the oral traditions and collect the written manuscripts. This information was systematically organized in the 2nd century AH, and in the following century a sound corpus was agreed upon. This vast activity of "seeking knowledge" (talab al-'ilm) resulted in the creation of specifically Arab sciences of tradition, history, and literature. (see also Index: religious education)

When the introduction of the Greek sciences--philosophy, medicine, and mathematics--created a formidable body of lay knowledge, a creative reaction on the traditional religious base resulted in the rationalist theological movement of the Mu'tazilah. Based on that Greek legacy, from the 9th to the 12th century AD a brilliant philosophical movement flowered and presented a challenge to orthodoxy on the issues of the eternity of the world, the doctrine of revelation, and the status of the Shari'ah.

The orthodox met the challenges positively by formulating the religious dogma. At the same time, however, for fear of heresies, they began to draw a sharp distinction between religious and secular sciences. The custodians of the Shari'ah developed an unsympathetic attitude toward the secular disciplines and excluded them from the curriculum of the madrasah(college) system.

Their exclusion from the Sunni system of education proved fatal, not only for those disciplines but, in the long run, for religious thought in general because of the lack of intellectual challenge and stimulation. A typical madrasah curriculum included logic (which was considered necessary as an "instrumental" science for the formal correctness of thinking procedure), Arabic literature, law, Hadith, Qur`an commentary, and theology. Despite sporadic criticism from certain quarters, the madrasah system remained impervious to change.

One important feature of Muslim education was that primary education (which consisted of Qur`an reading, writing, and rudimentary arithmetic) did not feed candidates to institutions of higher education, and the two remained separate. In higher education, emphasis was on books rather than on subjects and on commentaries rather than on original works. This, coupled with the habit of learning by rote (which was developed from the basically traditional character of knowledge that encouraged learning more than thinking), impoverished intellectual creativity still further.

Despite these grave shortcomings, however, the madrasah produced one important advantage. Through the uniformity of its religio-legal content, it gave the 'ulama` the opportunity to effect that overall cohesiveness and unity of thought and purpose that, despite great variations in local Muslim cultures, has become a palpable feature of the world Muslim community. This uniformity has withstood even the serious tension created against the seats of formal learning by Sufism through its peculiar discipline and its own centres.

In contrast to the Sunni attitude toward it, philosophy continued to be seriously cultivated among the Shi'ah, even though it developed a strong religious character. Indeed, philosophy has enjoyed an unbroken tradition in Persia down to the present and has produced some highly original thinkers. Both the Sunni and the Shi'ah medieval systems of learning, however, have come face to face with the greatest challenge of all--the impact of modern education and thought.

Organization of education developed naturally in the course of time. Evidence exists of small schools already established in the first century of Islam that were devoted to reading, writing, and instruction in the Qur`an. These schools of "primary" education were called kuttabsThe well-known governor of Iraq at the beginning of the 8th century, the ruthless al-Hajjaj, had been a schoolteacher in his early career. When higher learning in the form of tradition grew in the 8th and 9th centuries, it was centred around learned men to whom students travelled from far and near and from whom they obtained a certificate (ijazah) to teach what they had learned. Through the munificence of rulers and princes, large private and public libraries were built, and schools and colleges arose. In the early 9th century a significant incentive to learning came from the translations made of scientific and philosophical works from the Greek (and partly Sanskrit) at the famous bayt al-hikmah("house of wisdom") at Baghdad, which was officially sponsored by the caliph al-Ma`mun. The Fatimid caliph al-Hakim set up a dar alhikmah ("hall of wisdom") in Cairo in the 10th-11th centuries. With the advent of the Seljuq Turks, the famous vizier Nizam al-Mulk created an important college at Baghdad, devoted to Sunni learning, in the latter half of the 11th century. One of the world's oldest surviving universities, al-Azhar at Cairo, was originally established by the Fatimids, but Saladin (Salah ad-Din al-Ayyubi), after ousting the Fatimids, consecrated it to Sunni learning in the 12th century. Throughout subsequent centuries, colleges and quasi-universities (called madrasah or dar al-'ulum) arose throughout the Muslim world from Spain (whence philosophy and science were transmitted to the Latin West) across Central Asia to India.

In Turkey a new style of madrasah came into existence; it had four wings, for the teaching of the four schools of Sunni law. Professorial chairs were endowed in large colleges by princes and governments, and residential students were supported by college endowment funds. A myriad of smaller centres of learning were endowed by private donations.

4) CULTURAL DIVERSITY

Underneath the legal and creedal unity, the world of Islam harbours a tremendous diversity of cultures, particularly in the outlying regions. The expansion of Islam can be divided into two broad periods. In the first period of the Arab conquests, the assimilative activity of the conquering religion was far-reaching. Although Persia resurrected its own language and a measure of its national culture after the first three centuries of Islam, its culture and language had come under heavy Arab influence. Only after Safavid rule installed Shi'ism as a distinctive creed in the 16th century did Persia regain a kind of religious autonomy. The language of religion and thought, however, continued to be Arabic. (see also Index: Safavid dynasty)

In the second period, the spread of Islam was not conducted by the state with 'ulama` influence but was largely the work of Sufi missionaries. The Sufis, because of their latitudinarianism, compromised with local customs and beliefs and left a great deal of the pre-Islamic legacy in every region intact. Thus, among the Central Asian Turks, shamanistic practices were absorbed, while in Africa the holy man and his barakah(an influence supposedly causing material and spiritual well-being) are survivors from the older cults. In India there are large areas geographically distant from the Muslim religio-political centre of power in which customs are still Hindu and even pre-Hindu and in which people worship a motley of saints and deities in common with the Hindus. The custom of satiunder which a widow burned herself alive along with her dead husband, persisted in India even among some Muslims until late into the Mughal period. The 18th- and 19th-century reform movements exerted themselves to "purify" Islam of these accretions and superstitions. (see also Index: religious syncretism, Hinduism)

Indonesia affords a striking example of this phenomenon. Because Islam reached there late and soon thereafter came under European colonialism, the Indonesian society has retained its pre-Islamic world view beneath an overlay of Islamic practices. It keeps its customary law (called adat) at the expense of the Shari'ah; many of its tribes are still matriarchal; and culturally the Hindu epics Ramayana and Mahabharata hold a high position in national life. Since the 19th century, however, orthodox Islam has gained steadily in strength because of fresh contacts with the Middle East.

Apart from regional diversity, the main internal division within Islamic society is brought about by urban and village life. Islam originally grew up in the two cities of Mecca and Medina, and as it expanded, its peculiar ethos appears to have developed in urban areas. Culturally, it came under a heavy Persian influence in Iraq, where the Arabs learned the ways and style of life of their conquered people, who were culturally superior to them. The custom of veiling women (which originally arose as a sign of aristocracy but later served the purpose of segregating women from men -- the pardah), for example, was acquired in Iraq.

Another social trait derived from outside cultures was the disdain for agriculture and manual labour in general. Because the people of the town of Medina were mainly agriculturists, this disdain could not have been initially present. In general, Islam came to appropriate a strong feudal ethic from the peoples it conquered. Also, because the Muslims generally represented the administrative and military aristocracy and because the learned class (the 'ulama`) was an essential arm of the state, the higher culture of Islam became urban based.

This city orientation explains and also underlines the traditional cleavage between the orthodox Islam of the 'ulama` and the folk Islam espoused by the Sufi orders of the countryside. In the modern period, the advent of education and rapid industrialization threatened to make this cleavage still wider. With the rise of a strong and widespread fundamentalist movement in the second half of the 20th century, this dichotomy has decreased.

3. Religion and the arts

1) THE VISUAL ARTS

The Arabs before Islam had hardly any art except poetry, which had been developed to full maturity and in which they took great pride. As with other forms of culture, the Muslim Arabs borrowed their art from Persia and Byzantium. Whatever elements the Arabs borrowed, however, they Islamized in a manner that fused them into a homogeneous spiritual-aesthetic complex. The most important principle governing art was aniconism; i.e., the religious prohibition of figurization and representation of living creatures. Underlying this prohibition is the assumption that God is the sole author of life and that a person who produces a likeness of a living being seeks to rival God. The tradition ascribed to the Prophet that a person who makes a picture of a living thing will be asked on the Day of Judgment to infuse life into it, whether historically genuine or not, doubtless represents the original attitude of Islam. In the Qur`an (3:49, 5:113), reflecting an account in a New Testament apocryphal work, it is counted among the miracles of Jesus that he made likenesses of birds from clay "by God's order," and, when he breathed into them, they became real birds, again, "by God's order." (see also Index: Arabic literature, Islamic arts)

Hence, in Islamic aniconism two considerations are fused together: (1) rejection of such images that might become idols (these may be images of anything) and (2) rejection of figures of living things. Plato and Plotinus, Greek philosophers, had also dismissed representative art as an "imitation of nature"; i.e., as something removed from reality. The Islamic attitude is more or less the same, with the added element of attributing to the artist a violation of the sanctity of the principle of life. The same explanation holds for the Qur`anic criticism of a certain kind of poetry, namely, free indulgence in extravagant image mongering: "They [poets] recklessly wander in every valley" (26:225).

This basic principle has, however, undergone modifications. First, pictures were tolerated if they were confined to private apartments and harems of palaces. This was the case with some members of the Umayyad and 'Abbasid dynasties, Turks, and Persians--in particular with the Shi'ah, who have produced an abundance of pictorial representations of the holy family and of the Prophet himself. Second, in the field of pictorial representation, animal and human figures are combined with other ornamental designs such as fillets and arabesques--stressing their ornamental nature rather than representative function. Third, for the same reason, in plastic art they appear in low relief. In other regions of the Muslim world--in North Africa, Egypt, and India (except for Mughal palaces)--representational art was strictly forbidden. Even in paintings, the figures have little representational value and are mostly decorative and sometimes symbolic. This explains why plastic art is one of the most limited areas of Islamic art. The only full-fledged plastic figures are those of animals and a few human figures that the Seljuqs brought from eastern Turkistan. (see also Index: iconography)

Much more important than plastic art were paintings, particularly frescoes and later Persian and Perso-Indian miniatures. Frescoes are found in the Umayyad and 'Abbasid palaces and in Spain, Iran, and in the harem quarters of the Mughal palaces in India. Miniature paintings, introduced in Persia, assumed much greater importance in the later period in Mughal India and Turkey. Miniature painting was closely associated with the art of book illumination, and this technique of decorating the pages of the books was patronized by princes and other patrons from the upper classes. (Miniature painting is also discussed below; see Illustration of myth and legend .) (see also Index: fresco painting, miniature painting)

2) MUSIC

Instrumental music was forbidden by the orthodox in the formative stages of Islam. As for vocal music, its place was largely taken by a sophisticated and artistic form of the recitation of the Qur`an known as tajwidNevertheless, the Muslim princely courts generously patronized and cultivated music. Arab music was influenced by Persian and Greek music. Al- Farabi, a 10th-century philosopher, is credited with having constructed a musical instrument called the arghanun (organ). In India, Amir Khosrow, a 14th-century poet and mystic, produced a synthesis of Indian and Persian music and influenced the development of later Indian music.

Among the religious circles, the Sufis introduced both vocal and instrumental music as part of their spiritual practices. The sama'as this music was called, was opposed by the orthodox at the beginning, but the Sufis persisted in this practice, which slowly won general recognition. The great Sufi poet Jalal ad-Din ar-Rumi (died 1273)--revered equally by the orthodox and the Sufis--heard the divine voice in his stringed musical instrument when he said "Its head, its veins (strings) and its skin are all dry and dead; whence comes to me the voice of the Friend?"

3) LITERATURE

In literature, drama and pure fiction were not allowed--drama because it was a representational art and fiction because it was akin to lying. Similar constraints operated against the elaboration of mythology (see below Islamic myth and legend). Story literature was tolerated, and the great story works of Indian origin--The Thousand and One Nights and Kalilah wa Dimnah--were translated from the Persian, introducing secular prose into Arabic. Didactic and pious stories were used and even invented by popular preachers. Much of this folklore found its way back into enlarged editions of The Thousand and One Nights and, through it, has even influenced later history writing. Because of the ban on fictional literature, there grew a strong tendency in later literary compositions--in both poetry and prose--toward hyperbole (mubalaghah), a literary device to satisfy the need of getting away from what is starkly real without committing literal falsehood, thus often resulting in the caricature and the grotesque. Poetry lent itself particularly well to this device, which was freely used in panegyrics, satires, and lyrics. As a form of effective expression, poetry is eminently characteristic of the East. The Arab genius is almost natively poetical with its strong and vivid imagination not easily amenable to the rigorous order that reason imposes upon the mind. This borderline attitude between the real and the unreal was particularly favourable to the development, in all medieval Islamic literatures of the Middle East, of the lyric and panegyric forms of poetry wherein every line is a self-contained unit. Much more importantly, it afforded a specially suitable vehicle for a type of mystic poetry in which it is sometimes impossible to determine whether the poet is talking of earthly love or spiritual love. For the same reason, poetry proved an effective haven for thinly veiled deviations from and even attacks on the literalist religion of the orthodox. (see also Index: religious literature, "Thousand and One Nights, The," )

4) ARCHITECTURE

Architecture is by far the most important expression of Islamic art, particularly the architecture of mosques. It illustrates both the diversity of cultures that participated in the Islamic civilization and the unifying force of Islamic monotheism represented by the spacious expanse of the mosque--a veritable externalization of the all-enveloping divine unity, heightened by the sense of infinity of the arabesque design. The arabesque, though ornately decorative, spiritually represents the infinite vastness of God.

Among the earliest monuments are the mosque of 'Amr built in Egypt in 641-642 and the famous Dome of the Rock of Jerusalem (finished in 691), which, however, is not a mosque but a monument, a concentric-circular structure consisting of a wooden dome set on a high drum and resting on four tiers and 12 columns. The Umayyad ruler al- Walid (died 715) built the great mosque at Damascus and al-Aqsa Mosque at Jerusalem with two tiers of arcades in order to heighten the ceiling. The early Syro-Egyptian mosque is a heavily columned structure with a prayer niche (mihrab) oriented toward the Ka'bah sanctuary at Mecca. (see also Index: 'Amr ibn al-'As, Mosque of, Damascus, Great Mosque of)

In Spanish and North African architecture these features are combined with Roman-Byzantine characteristics, the masterpieces of Spanish architecture being the famous Alhambra Palace at Granada and the Great Mosque of Córdoba. In the famous Persian mosques, the characteristic Persian elements are the tapered brick pillars, the arches (each supported by several pillars), the huge arcades, and the four sides called eyvans. With the advent of the Seljuqs in the 11th century, faience decoration (glazed earthenware) of an exquisite beauty was introduced, and it gained further prominence under the Timurids (14th-16th centuries).

In the number and greatness of mosques, Turkey has the pride of first place in the Muslim world. Turkey began with a Persian influence and then later Syrian in the 13th and 14th centuries, but Turkey developed its own cupola domes and monumental entrances. The Turkish architects accomplished symmetry by means of one large dome, four semidomes, and four small domes among them. In the Indo-Pakistan subcontinent, Muslim architecture first employed Hindu architectural features (e.g., horizontal rather than arcuate, or bowlike, arches and Hindu ornamentation), but later the Persian style predominated. ( F.R./Ed.)

4. Islamic myth and legend

The strict monotheism of Islam does not allow for much mythological embellishment, and only reluctantly were the scriptural revelations of the Qur`an elaborated and enlarged by commentators and popular preachers. Thus, in the first three centuries, a number of ideas from the ancient Near East, from Hellenistic and especially from Judeo-Christian traditions were absorbed into Islam and given at least partial sanction by the theologians. At the same time, legends were woven around the Prophet Muhammad and the members of his family. Though inconsistent with historical reality, these legends formed for the masses the main sources of inspiration about the famous figures of the past.

Since early times Islamic theologians have sought to disregard the Qur`anic interpretation of both storytellers and mystics. The qussas, or storytellers, made the Qur`anic revelation more understandable to the masses by filling in the short texts with detailed descriptions that were not found in scripture. Though the mystics tried to maintain the purity of the divine word, they also attempted a spiritualization of both the Qur`an and the popular legends that developed around it. Their way of giving to the Qur`anic words a deeper meaning, however, and discovering layer after layer of meaning in them, sometimes led to new quasi-mythological forms. Later Islamic mystical thinkers built up closed systems that can be called almost mythological (e.g., the angelology--theory of angels--of Suhrawardi al-Maqtul, executed 1191). An interesting development is visible in poetry, especially in the Persian-speaking areas, where mythological figures and pious legend often were turned into secular images that might awaken in the reader a reminiscence of their religious origin. Such images contribute to the iridescent and ambiguous character of Persian poetry.

1) SOURCES AND VARIATIONS

i) The Qur`an and non-Islamic influences.

The sources of Islamic mythology are first of all the Qur`anic revelations. Since, for the Muslims, the Qur`an is the uncreated word of God (the text revealed to Muhammad considered an earthly manifestation of the eternal and uncreated original in heaven), it contains every truth, and whatever is said in it has been the object of meditation and explanation through the centuries. Thus, since the 9th century, commentators on the Qur`an have been by far the most important witnesses for Islamic "mythology." They wove into their explanations various strands of Persian and ancient oriental lore and relied heavily on Jewish tradition. For example, the Jewish convert, Ka'b al-Ahbar brought much of the Isra`iliyat (things Jewish) into Islamic tradition. Later on, the mystics' commentaries expressed some gnostic (a dualistic viewpoint in which spirit is viewed as good and matter as evil) and Hellenistic concepts, of which the Hellenistic idea of the Perfect Man--personified in Muhammad--was to gain greatest prominence. Commentaries written in the border areas of Islamic countries now and then accepted a few popular traditions from their respective areas; however, the formative period was finished quite early. Traditions about the life and sayings of the Prophet grew larger and larger and are interesting for the study of the adoption of foreign mythological material. A valuable source for Islamic legends are the qisas al-anbiya`--stories of the prophets, such as those by Tha'alibi (born 1035) and Kisa`i (11th century)--traditions concerning the prophets of yore in which a large number of pre-Islamic and non-Islamic ideas were incorporated.

While the classical mythology of Islam, as far as it can be properly called so, is spread over the whole area of Islam, the miracles and legends around a particular Muslim saint are found chiefly in the area of his special influence (especially where his order is most popular). Even if the names of the saints differ, the legends woven around them are very similar to each other and almost interchangeable. In the area where Persian was read--from Ottoman Turkey to India--the mythological concepts of Ferdowsi's Shah-nameh are found side by side with the legends taken from 'Attar's and Rumi's works.

ii) The mystics.

From the 11th century onward, the biographies of the mystics often show interesting migrations of legendary motifs from one culture to another. For the Persian-speaking countries the Tazkerat ol-Owliya` ("Memoirs of the Saints") of Farid od-Din 'Attar (died c. 1220) has become the storehouse of legendary material about the early Sufi mystics. 'Attar's Persian epics (especially his Manteq ot-teyr, the "Birds' Conversation") also contain much material that was used by almost every writer after him. The Masnavi (a sort of poetic encyclopaedia of mystical thought in 26,000 couplets) of Jalal od-Din Rumi (died 1273) is another important source for legends of saints and prophets. For the Iranian world view, Ferdowsi's (died c. 1020) Shah-nameh("Book of Kings") gave a poetical account of the mythology of old Iran, and its heroes became models for many poets and writers. The whole mythological and legendary heritage is condensed in allusions found in lyrical and panegyrical poetry. The Persian poet Ebrahim ebn 'Ali Khaqani's (c. 1121-c. 1199) works, qasidahs ("Odes"), are typical. The close connection of the Sufi orders with the artisans' lodges and guilds was instrumental in the dissemination of legendary material, especially about the alleged founder, or patron, of the guild (such as Hallaj as patron of cottoncarders and Idris as patron of the tailors). (see also Index: "Masnavi-ye Ma'navi")

Muslim historians interested in world history often began their works with mythological tales; central Asian traditions were added in Iran during the Il-Khanid period (AD 1256-1335). Folk poetry, in the different languages spoken by Muslims, provides a popular representation of traditional material, be it in Arabic, Persian, Turkish, the Indian and Pakistani languages (Urdu, Bengali, Sindhi, Panjabi, Baluchi, etc.), or the African languages; in all of them allusions to myth and legend are found down to the level of riddles and lullabies. Typical of the legendary tradition of the Shi'ah are the ta'ziyas ("passion-plays") in Iran, commemorating the death of Husayn ibn 'Ali in Karbala` (680) and the marsiyehs (threnodies or elegies for the dead), which form an important branch of the Urdu poetry of India and Pakistan. A proper study of the distribution of most aspects of mythology in the various Muslim areas has not been undertaken, since much of the popular material is rarely available in print or is written in less-known languages--a good example is the extremely rich collections of legends and popular pious works in the Pakistani language, Sindhi.

2) TYPES OF MYTH AND LEGEND

i) Cosmogony and eschatology.

The world was created by God's word kun ("Be") out of nothing; after the creation of the angelic beings from light, Adam was formed from clay and destined to be God's vicegerent, khalifah. All of the angels obeyed God's order to prostrate themselves before Adam, except Iblis (Satan), who refused and was cursed; due to Iblis' instigation Adam ate the forbidden fruit (or grain) and was driven out of paradise. Questions of original sin or of Eve's role do not arise in the Muslim version of creation. Satan's disobedience has been explained by the mystics as actually an expression of his obedience to the divine will that does not allow worship of any but the Lord and that conflicted with the order that Satan prostrate himself before Adam. (see also Index: creation myth, devil, Adam and Eve)

Before the creation, God addressed the posterity of Adam: "Am I not your Lord," alastu birabbikum, and they answered "Yes" (Qur`an, surah 7:172). This pre-eternal covenant is the favourite topic of mystical poetry, especially in the Persian-speaking areas for expressing pre-eternal love between God and man, or the unchangeable fate that was accepted that very day, the Yesterday as contrasted to the Tomorrow of resurrection. Angels and jinns (genies) are living powers that become visible in human life; they are accepted as fully real.

Every destiny is written on the "well-preserved tablet," and now "the pen has dried up"--a change in destiny is not possible. Later mystics have relied on an extra-Qur`anic revelation in which God attests: "I was a hidden treasure" and have seen the reason for creation in God's yearning to be known and loved. For them, creation is the projection of divine names and qualities onto the world of matter.

The central event of Islam is death and resurrection. The dead will be questioned by two terrible angels (that is why the profession of faith is recited to the dying); only the souls of martyrs go straight to heaven where they remain in the crops of green birds around the divine throne (green is always connected with heavenly bliss). The end of the world will be announced by the coming of the mahdi (literally, "the directed or guided one")--a messianic figure who will appear in the last days and is not found in the Qur`an but developed out of Shi'ah speculations and sometimes identified with Jesus. The mahdi will slay the Dajjal, the one-eyed evil spirit, and combat the dangerous enemies, Yajuj and Majuj, who will come from the north of the earth. The trumpet of Israfil, one of the four archangels, will awaken the dead for the day of resurrection, which is many thousands of years long and the name of which has come to designate a state of complete confusion and turmoil.

The eschatological inventory as described in the Qur`an was elaborated by the commentators: the scales on which the books or deeds are weighed (an old Egyptian idea), the book in which the two recording angels have noted down man's deeds, and the narrow bridge that is said to be sharper than a sword and thinner than a hair and leads over hell (an Iranian idea). The dreadful angels of hell and the horrors of that place are as thoroughly described by theologians as the pleasures of paradise, with its waters and gardens and the houris who are permanent virgins. Pious tradition promises space in heavenly mansions, filled with everything beautiful, to those who repeat certain prayer formulas a certain number of times, or for similar rewarding deeds, whereas the mystic longs not "for houris some thousand years old" but for the vision of God, who will be visible like the full moon. In the concept of the sidrah tree as the noblest place in paradise a remnant may be found of the old tree of life. God's throne is on the waters (Qur`an, surah 11:9) in the highest world, surrounded by worshipping angels. The created world, the earth, is surrounded by the mountain Qaf and enclosed by two oceans that are separated by a barrier. Mecca is the navel of the earth, created 2,000 years before everything else, and the deluge did not reach to proto-Ka'bah. Often the world is conceived as a succession of seven heavens and seven earths, and a popular tradition says that the earth is on water, on a rock, on the back of a bull, on a kamkam (meaning unknown), on a fish, on water, on wind, on the veil of darkness--hence the Persian expression az mah ta mahi, from the moon to the fish; i.e., throughout the whole world.

ii) Tales and legends concerning religious figures.

The majority of popular legends concern the leading personalities of Islam.

1. Muhammad.

Muhammad, whose only miracle, according to his own words, was the bringing of the Qur`an, is credited with innumerable miracles and associated with a variety of miraculous occurrences: his finger split the moon, the cooked poisoned meat warned him not to touch it, the palm trunk sighed, the gazelle spoke for him; he cast no shadow; from his perspiration the rose was created, etc. His ascension to heaven (mi'raj) is still celebrated: he rode the winged horse Buraq in the company of the angel Gabriel through the seven spheres, meeting the other prophets there, until he reached the divine presence, alone, even without the angel of inspiration. Muhammad-mysticism proper was developed in the late 9th century; he is shown as the one who precedes creation, his light is pre-eternal, and he is the reason for and goal of creation. He becomes the perfect man, uniting the divine and the human sphere as dawn is between night and day. His birth was surrounded by miracles, and his birthday (12. Rabi` I) became a popular holiday on which numerous poems were written to praise his achievements. The hope for him who has been sent as "mercy for the worlds" and will intercede for his community on Doomsday is extremely strong, especially among the masses, where these legends have completely overshadowed his historical figure.

2. Other Qur`anic figures.

In addition to Muhammad himself, his cousin and son-in-law 'Ali, the Shi'ah hero, has been surrounded by legends concerning his bravery, his miraculous sword, Dhua`l-fiqar, and his wisdom. 'Ali's son, Husayn, is the subject of innumerable poems that concern the day of his final fight in Karbala`.

Almost every figure mentioned in the Qur`an has become the centre of a circle of legends, be it Yusuf, the symbol of overwhelming beauty, or Jesus with the life-giving breath, the model of poverty and asceticism. Of special interest is Khidr, identified with the unnamed companion of Moses (Qur`an, surah 20). He is the patron saint of the wayfarers, connected with green, the colour of heavenly bliss, appearing whenever a pious person is in need, and immortal since he drank from the fountain of life, which is hidden in the darkness. In many respects, he is the Islamic counterpart of Elijah. Strong influences of the Alexander romances (a widely distributed literary genre dealing with the adventures of Alexander the Great) are visible in his figure. (see also Index: Khidr, al-)

3. Mystics and other later figures.

The great religious personalities have become legendary, especially the martyr-mystic Hallaj (executed in Bagdad, 922). His word ana al-Haqq, "I am the Creative Truth," became the motto of many later mystics. His death on the gallows is the model for the suffering of lovers, and allusions to his fate are frequent in Islamic literature. An earlier mystic, Abu Yazid al- Bistami (died 874), was the first to speak about the ascension of the mystic to heaven, which is a metaphor for higher unitive, mystical experience. A variation of the Buddha legend has been transferred onto the person of the first Sufi (mystic) who practiced absolute poverty and trust in God, the Central Asian Ibrahim ibn Adham (died c. 780). The founders of mystical orders were credited by their followers with a variety of miracles, such as riding on lions, healing the sick, walking on water, being present at two places at the same time, and cardiognosia (which is the knowledge of what is in another's heart, or thought reading). 'Abd al-Qadir al-Jilani (died 1166), the founder of the widespread Qadiriyah order of mystics, and many others have attracted upon themselves a large number of popular stories that formerly had been told about pre-Islamic saints or about some divinities, and these motifs can easily be transferred from one person to the other. In this sphere the survival of pre-Islamic customs and legends is most visible. The idea of the hierarchy of saints, culminating in the qutb, the pole or axis, thanks to whose activities the world keeps going, belongs to the mythology of Sufism (Islamic mysticism).

iii) Mythologization of secular tales.

A feature of Islamic mythology is the transformation of unreligious stories into vehicles of religious experience. The old hero of romantic love in Arabic literature, Majnun, "the demented one," became a symbol of the soul longing for identification with God, and in the Indus Valley the tales of Sassui or Sohni, the girls who perish for their love, and other romantic figures, have been understood as symbols of the soul longing for union with God through suffering and death.

iv) Tales and beliefs about numbers and letters.

Many Muslim tales, legends, and traditional sayings are built upon the mystical value of numbers, such as the threefold or sevenfold repetition of a certain rite. This is largely explained by examples from the life of a saintly or pious person, often the Prophet himself, who used to repeat this or that formula so and so many times. The number 40, found in the Qur`an (as also in the Bible) as the length of a period of repentance, suffering, preparation, and steadfastness, plays the same role in Islam where it is connected, for example, with the 40 days' preparation and meditation, or fasting, of the novice in the mystical brotherhood. To each number, as well as to each day of the week, special qualities are attributed through the authority of both actual and alleged statements of the Prophet. Many pre-Islamic customs were thus justified. The importance given to the letters of the Arabic alphabet is peculiar to Muslim pious thought. Letters of the alphabet were assigned numerical values: the straight alif (numerical value one), the first letter of the alphabet, becomes a symbol of the uniqueness and unity of Allah; the b (numerical value two), the first letter of the Qur`an, represents to many mystics the creative power by which everything came into existence; the h (numerical value five) is the symbol of huwa, He, the formula for God's absolute transcendence; the m (numerical value 40) is the "shawl of humanity" by which God, the One (al-Ahad), is separated from Ahmad (Muhammad). M is the letter of human nature and hints at the 40 degrees between man and God. The sect of the Hurufis developed these cabalistic interpretations of letters, but they are quite common in the whole Islamic world and form almost a substitute for mythology. (see also Index: numerology)

3) ILLUSTRATION OF MYTH AND LEGEND

Since the art of representation is opposed in Islam, illustrations of mythological and legendary subjects are rarely found. Miniature painting developed only in the Persian and, later on, in the Turkish and Indo-Muslim areas. Books such as Zakariya` ebn Mohammad al-Qazvini's Cosmography contain in some manuscripts a few pictures of angels, like Israfil with the trumpet, and histories of the world or histories of the prophets, written in Iran or Turkey, also contain in rare manuscripts representations of angels or of scenes as told in the Qur`an, especially the story of Yusuf and Zalikha, which inspired many poems. The Shah-nameh has been fairly frequently illustrated. When the Prophet of Islam is shown at all, his face is usually covered and in several cases his companions or his family members are also shown with veiled faces.

The only subject from the legends surrounding Muhammad that has been treated by miniaturists several times is his ascension to heaven. There are a number of splendid Persian miniatures depicting this. In poetical manuscripts that contain allusions to legends of the saints, these topics were also sometimes illustrated (e.g., Jonah and the great fish or scenes from the wanderings of Khidr). Several miniatures deal with the execution of the mystic al-Hallaj. Mythological themes proper are found almost exclusively in the paintings of Mughal India; especially in the period of Jahangir, in which the eschatological peace of lion and lamb lying together is illustrated as well as the myth of the earth resting on the bull, on the fish, etc. But by that time European influence was also already visible in Mughal art.

4) SIGNIFICANCE AND MODERN INTERPRETATIONS

Mythology proper has only a very small place in official Islam and is mostly an expression of popular traditions through which pre-Islamic influences seeped into Islam. Reformers tried to purge Islam of all non-Qur`anic ideas and picturesque elaborations of the texts, whereas the mystics tried to spiritualize them as far as possible. Modern Muslim exegesis attempts to interpret many of the mythological strands of the Qur`an in the light of modern science, as psychological factors, like Muhammad's ascension to heaven, and especially deprives the eschatological parts of the Qur`an of their religious significance. Cosmic events are interpreted as predictions of modern scientific research. To some interpreters, jinns and angels are spiritual forces; to others, jinns are microbes or the like. Thus the religious text is confused with a textbook of science. Popular legends surrounding the Prophet and the saints are still found among the masses but are tending to disappear under the influence of historical research, though many of them have formed models for the behaviour and spiritual life of the Muslim believer. 

   


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