Islamic Law in Al-Andalus: Characteristics, Sources, and Influence
The Characteristics of Islamic Law and Its Legal Sources
The mixed culture of Al-Andalus did not extend to its legal system. There was no blending of legal traditions due to the close connection between religion and law in the Muslim world. The Quran served as a guide for religious practices, morals, and laws.
Muslim law was not tied to a specific territory but applied to members of the Muslim community. Conversion to Islam was the gateway to this legal system. This close relationship between religion and law hindered legal innovation, as the immutability of religious principles extended to legal ones. The science of law, Fiqh, thus had both legal and theological components.
The Imposition of the Muslim Legal System
The arrival of Muslims in Hispania presented a clash of peoples, cultures, and legal systems. Unlike the Roman and Visigothic systems, which were imposed by the victors, the Muslim legal system expanded through the conversion of the conquered population.
Legal Articulation Based on Religious Affiliation
Religious affiliation determined the applicable legal system. The Muslim community of Al-Andalus had its own laws, as did the Christian and Jewish communities (the People of the Book).
The Believers
The Muslim community, or Al-Jama’a, was both religious and political. It comprised those who initially embraced Islam and later converts.
The Infidels
The Islamic obligation of holy war (jihad) against infidels led to a significant number of non-Muslims under Islamic rule. These infidels were categorized as:
- Idolaters or polytheists, who denied the existence of one God.
- Followers of monotheistic religions with scriptures (Christians and Jews), who were granted a degree of tolerance.
Status of Monotheistic Faith Communities (Dhimmis)
The status of dhimmis could vary. Those who resisted Muslim rule were enslaved, and their property became spoils of war. Those who accepted Muslim rule received protected status (dhimmi) under specific covenants.
Dhimmis had obligations, rights, and prohibitions:
- Obligations: Recognizing Muslim political superiority, respecting Islam, and paying taxes.
- Rights: Protection of property, right to own property (excluding Muslim slaves and Qurans), ability to contract, recognition of their marriage laws, inheritance rights within their community, autonomy in civil and military justice, practice of their religion, and local organization.
- Prohibitions: Holding public office, guardianship over Muslims, testifying against Muslims in court, marrying Muslim women, inheriting from Muslims, and wearing Muslim clothing.
Failure to comply with these rules resulted in the loss of protected status and potential enslavement or death.
Islamic Law and the Duty of Obedience
Obeying Islamic law was both a social duty and a religious precept. The law was seen as an act of mercy from God. Islam, being a mystical but not ascetic religion, encouraged enjoyment of life’s good things. Islamic law addressed both spiritual and social life, outlining duties towards God and towards fellow humans.
The Legal Sources of Muslim Law
The Quran
The Quran, meaning “recitation,” is the divine word of Allah revealed to Prophet Muhammad through the Archangel Gabriel. It holds supreme authority and demands absolute obedience. Only a small portion of the Quran is explicitly legal, primarily from the Medinan period. It is not a codified legal text but a collection of moral precepts, exhortations, and stories, from which legal provisions are derived.
The Sunnah
The Sunnah complements the Quran by providing examples of Prophet Muhammad’s words and actions. It encompasses what he said, did, and tacitly approved. The Sunnah was initially transmitted orally through hadiths (narrations). Later, collections of hadiths were compiled, some gaining authoritative status (e.g., Bukhari, Muslim). The science of hadith developed methods to verify their authenticity.
The Consensus of the Muslim Community (Ijma)
Ijma is based on the belief that the Muslim community will not agree on an error. The challenge lies in determining what constitutes consensus. Some consider it the agreement of Prophet Muhammad’s companions, others the consensus of legal scholars. Ijma served as a supplementary source of law, allowing for the assimilation of new concepts and the integration of hadiths.
Analogy (Qiyas)
Qiyas is an inductive reasoning process used to derive legal rulings for cases not explicitly covered by the Quran or Sunnah. It involves finding a similar case with a known ruling and applying the same principle to the new case. Its validity was debated, with traditionalists opposing it and the Hanafi school advocating for it.
Custom (Urf, Adah)
Custom is a controversial legal source. Some consider general custom, based on permanent interests, a valid source, while others only accept local custom as a subsidiary source. Initially, local customs were recognized in conquered territories. Over time, custom gained acceptance as a subsidiary source of law.
Subsidiary Rules of Law
In the absence of specific legal provisions or applicable analogies, legal interpreters could use ijtihad (independent legal reasoning) to find solutions based on their conscience and the general utility of the law. Another option, supported by the Hanafi school, was the principle of equity, allowing judges to find better solutions than those offered by analogy.
The Law of the Christian Community of Al-Andalus
The Mozarabic Christians of Al-Andalus retained their legal system, primarily based on the Liber Iudiciorum (Visigothic Code) and Hispanic canonical collections. However, certain aspects of their law had to adapt to the new reality under Muslim rule, particularly in property, family, and inheritance law. The influence of Mozarabic law gradually declined due to conversions to Islam and migration to Christian territories.
The Law of the Jewish Community
character, validity and sources of Law / / Law and religion were very close among the Jews, intermingling both kinds of standards in their texts. In Spain would follow the destruction of Jerusalem (74) and the persecution of Adrian (135): the dispersion or Diaspora Jewish. At the Council of Elvira (300-303) adopted provisions that discriminate against them. It seems that the Jewish inhabitants of Spain after their expulsion from Palestine by the emperor Hadrian (136) were governed by Roman law. But in civil matters were brought before their own authorities and apply its own law. Although we have few references to Jews from the VIII to XI is supposed to peaceful submission to the Muslims to do recipients of protected status by them, forming more or less dense communities in most major cities (Córdoba , Lucena …) where in some cases would have a significant economic role./ / The Jewish communities were present in different areas, the ghettos, in Al-Andalus in the territories of Christian Spain. / / The law of the Jews is part of their religion and their creation was the source of divine revelation which resulted in a written and oral tradition. The written text is the law given by God to the Jewish people, a law which is contained in the first five books of the Old Testament or the Pentateuch (Genesis, Exodus, Leviticus, Numbers and Deuteronomy) known collectively as the Torah or Law, understood written into law. TORAH Torah is the law dictated by God to Moses at Sinai. Moses carried out legal work to write a series of standards, resulting in the so-called law of Moses. She was added news of all kinds (home of the world, history, etc.), Thus forming the Pentateuch (the first five books of the Bible.) Were added to the Pentateuch revelations to the prophets (the “Books of the Prophets”). Includes a group of hagiographic books (historical, philosophical, religious, moral) that do not contain legal-religious organization. TRADITION The study and interpretation of the Torah gave rise to a broad doctrine transmitted orally, the tradition of their parents. This is a literal, formalist, casuistry, sometimes opposite to the spirit of the law. There were two trends: – The Sadducees (high priest), purists, advocated strict observance of the Torah. Your tendency may be considered more open. – The Pharisees (scribes) believed in a tradition with the same value as the law. Your tendency may be considered more closed or traditional. The ideal of the scribes was to make the Torah living standard of the conduct of the Jew under the authoritative interpretation of a skilled person, the type. / / The work of connoisseurs and interpreters of the law, the rabbis, was transmitted orally and sometimes collected in libraries. Some of these collections reached a prestige that was regarded as binding or nearly so, but it remained essential to the presence of rabbis capable of interpreting the Torah and adapt to the circumstances of time and the particular cases, the views of the most prestigious rabbis could have the same or even greater influence than the collections. / / The written language of tradition was due to three factors: the rise of Christianity, the destruction of Jerusalem (74) and the expulsion of Jews from Palestine (136). At the beginning of the third century was closed the drafting process of a book entitledOr Mishna Mishna (oral law, teaching, repetition), by Rabbi Yehuda (d. about the 220), this was the first compilation generally recognized and legally binding. The process of attaching the included gathering oral tradition sources of data, old traditions and new provisions interpreted and put up old ones or simply wanted to ensure compliance with existing ones. The Mishnah contains customs, judgments or decisions, cases and other narrative or moral content. The Mishnah has been considered more than a book of civil and criminal law, the monument visible in a theocratic society driven by the ideals of purity and holiness, which sought to bring the lives of people with the total domination of the divine law. / / After the writing of the Mishna continued the work of the interpreters (the rabbis and their students). Commentary and analysis on the Torah and Tradition (both collected in the Mishnah as the elements of tradition that were left out of this book) resulted in the Gemara (commentaries, complement), of which there are two different versions: 370 towards a collection appeared in Palestine (of Jerusalem). Around 500 appeared one in Iraq (Babylon, the highest circulation, which is seen more clearly and completely). / / Both texts, the Mishnah and Gemara form the Talmud (doctrine), embodied in the two versions mentioned, that of Jerusalem or Palestinian Talmud (the final version is set to the fourth century) and Babylon (which process wording was closed between the sixth and seventh centuries). These works are considered collectively, represents the work of teachers and students of theological schools for many years. Evolution of Law of the Jews and the Jewish contribution Andalusian / / The law of the Jews persisted in their communities and Jewish communities. This is a confessional personal law, in essence, had been set in Roman times. The developments in the mean time we should be poor, not emanating from a supreme governing body of Judaism, because there was not. The most dynamic centers in the legal field were Jewish until the eleventh century in Iraq and Persia. In the twelfth century in Muslim Spain and from the thirteenth century Christian Spain. / / There was a change in the priority of Jewish legal sources. The role of the rabbis and not so much the creators of the law through interpretation of exhibitors but the Talmud. His work thereafter will be to discuss and summarize such a complex text. Anyway your comments and summaries reached doctrinal value, becoming true in practice codes moved to the Talmud. / /Rabbinical schools existed in Al-Andalus from the tenth century to the Almohad invasion (second half of XII century). In Christian Spain until the end of XIV. / / The work of scholars bore fruit commentaries on the Bible, commentaries on the rabbinic literature (such as the Cordoba Solomon ben Maimon, or Maimonides), codes that were presented in a systematic way the laws of oral tradition (eg those of Isaac Alfasi, de Lucena, or Maimonides). Shone especially Maimonides (Córdoba to 1138 – Egypt 1204), who attempted to reduce technical Aristotelian the early Talmudic casuistry. His two greatest works, “servage (elucidatory or Torch) and” Yad Hachzaká (religious-legal code) achieved enormous popularity. He wrote in both Hebrew and Arabic. It is considered the leading Jewish philosopher of the Middle Ages, but also was a physician and an authority on the law of their community. / / Another genre was the “responsible” decisions knowing the law on legal and religious aspects consulted them private, Jewish courts or administrative authorities. These works were remarkably practical in nature, were collected and considered a source of law. The Tecan or local ordinances / / The local organizational autonomy enjoyed by the aljamas allowed to enact ordinances governing bodies (“Taqqanot, Tecan). Many of these were local, others are spread or influenced the ordinances from different locations and there were even some general data for an area, resulting from the approval of the representatives of various Jewish communities gathered in a meeting.