66
|
DEVELOPMENT OF JURISPRUDENCE
| |
authoritative evidences of its whence, its how, and its whither. Our difficulties are
different, but sufficiently great. Shortly, they are two. The mass of material is
overpowering; the strangeness of the ideas involved is perplexing. The wealth of material
will become plain, to some extent at least, as the history is traced; but for the
strangeness of the contents, of the arrangement and the atmosphere of these codes some
preparation must be given from the outset. How, indeed, can we meet a legal code which
knows no distinction of personal or public, of civil or criminal law; which prescribes and
describes the use of the toothpick and decides when a wedding invitation may be declined,
which enters into the minutest and most unsavory details of family life and lays down
rules of religious retreat? Is it by some subtle connection of thought that the chapter on
oaths and vows follows immediately that on horse-racing, and a section on the building
line on a street is inserted in a chapter on bankruptcy and composition? One thing, at
least, is abundantly clear. Muslim law, in the most absolute sense, fits the old
definition, and is the science of all things, human and divine. It tells what we must
render to Caesar and what to God, what to ourselves, and what to our fellows. The bounds
of the Platonic definition of rendering to each man his due it utterly shatters. While
Muslim theology defines everything that a man shall believe of things in heaven and
in earth and beneath the earthand this is no flat rhetoricMuslim law prescribes
everything that a man shall do to God, to his neighbor, and to himself. It takes
all duty for its portion and defines all action in
|
|
|
terms of duty. Nothing can escape the narrow meshes of its net. One of the greatest
legists of Islam never ate a watermelon because he could not find that the usage of the
Prophet had laid down and sanctioned a canonical method of doing so.
It will, therefore, be well for the student to work through the sketch of a code of
Muslim law which is inserted in Appendix I. One has been chosen which belongs to the
school of ash-Shafi'i because of its general accessibility. It should be remembered that
what is given is the merest table of contents. The standard Arabic commentary on the book
extends to eight hundred and eleven closely printed quarto pages. Even a mere reading of
this table of contents, however, will show in how different a sphere of thought from ours
Muslin law moves and lives. But we must return to the beginning of things, to the egg from
which this tremendous system was hatched.
The mother-city of Islam was the little town of Yathrib, called Madinat an-Nabi, the
City of the Prophet, or, shortly, al-Madina, ever since the Hijra or Migration of Muhammad
to it in the year 622 of the Christian era. Here the first Muslim state was founded, and
the germinal principles of Muslim jurisprudence fired. Both state and jurisprudence were
the result of the inter-working of the same highly complicated causes. The ferments in the
case may be classified and described as follows: First, in the town itself before the
appearance of Muhammad on its little stage little, but so momentous for the futurethere
were two parties, often at war, oftener at peace. There was a genuine Arab element and
|
|