As Islam spread beyond the desert and the conditions in which the life
of Mahomet and his companions had been cast, it came to regions,
climates, customs, where the Arabian usages no longer held. Not only
were the prescripts of Medina ill adapted to the new conditions; the new
people had legal usages of their own to which they clung and which
nothing could make them abandon. It was rather the Moslem leaders who
were compelled to abandon their ideas and for the sake of the spread of
Islam to accept and incorporate much that was diametrically opposed to
the original legislation either of the Koran or of Mahomet's recorded
decisions. As in religion the faiths of the conquered peoples were
thinly veneered with Moslem phrases, so in law there grew up a customary
code (_`adat_) for each country, differing from every other, which often
completely obscured and annulled the prescriptions of the canon law. The
one was an ideal system, studied and praised by the pious learned; the
other was the actual working of law in the courts.
But besides the obstinate adherence of various peoples to their old
paths, the will of individual rulers was a determining factor. When
these ceased to be saints and students of divine things, and came to be
worldly statesmen and opportunists, followers of their own objects and
pleasures, no system could hold which set a limit to their authority.
The Oriental ruler must rule and judge on his own initiative, and the
schools of canon law tended to reduce everything to an academic
fixedness. There thus arose a new and specific statute law, emanating
from the sovereign. At first he judged in the gate as seemed good in his
eyes and as was his right and duty (cf. "court of oppressions"; see
MAHOMMEDAN INSTITUTIONS); later, his will was codified as in the Turkish
statute law (_qawanin_) derived from various European codes. Thus there
has grown up in almost every Moslem country at least two systems of
courts, the one administering this canon law, and taking cognisance of
private and family affairs, such as marriage, divorce, inheritance, its
officials also giving rulings on purely personal religious questions,
such as details of the ritual law, the law of oaths and vows, &c.; the
other, the true law courts of the land, administering codes based on
local custom and the decrees of the local rulers.
Public-domain text, read in full here on John Shaqi.
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