In Our Time - Islamic Law and its Origins

Episode Date: May 5, 2011

Melvyn Bragg and his guests discuss the origins and early development of Islamic law. The legal code of Islam is known as Sharia, an Arabic word meaning "the way". Its sources include the Islamic holy book the Qur'an, the words and actions of the Prophet Muhammad, and the opinions of legal scholars. In the 7th century, Sharia started to replace the tribal laws of pre-Islamic Arabia; over the next three hundred years it underwent considerable evolution as Islam spread. By 900 a body of religious and legal scholarship recognisable as classical Sharia had emerged.With:Hugh KennedyProfessor of Arabic in the School of Oriental and African Studies at the University of LondonRobert GleaveProfessor of Arabic Studies at the University of ExeterMona SiddiquiProfessor of Islamic Studies at the University of GlasgowProducer: Thomas Morris.

This BBC podcast is supported by ads outside the UK. Thanks for downloading the In Our Time podcast. For more details about In Our Time and for our terms of use, please go to BBC.co.com.uk forward slash radio four. I hope you enjoy the programme. Hello, in the early 7th century, a new religion emerged in the Arabian Peninsula. This was Islam. Its spiritual leader was the Prophet Muhammad,

who by the time of his death in 632, had succeeded in uniting the tribes of Arabia in a seven, single political and religious community. Within a century, this community had become larger still and dynamic, with Muslim territories ranging as far west as the Atlantic Sea board of Africa and as far east as Iran. Islam brought with it not just new religious practices, but its own legal system. Islamic law was rooted in the revelation of the Prophet, as recorded in the Holy Text of the Quran. But over the following 200 years, it continued to evolve into a complex and nuanced system, the system, also known as Sharia.

With me to discuss Islamic law and its origins are Hugh Kennedy, Professor of Arabic in the School of Oriental and African Studies at the University of London, Robert Gleave, Professor of Arabic Studies at the University of Exeter, and Mona Siddiqui, Professor of Islamic Studies at the University of Glasgow. Hugh Kennedy, before we get to the law, let's look at the origins of Islam itself. Would you just give us some background there? Islam emerges. In the early decades of the 7th century, it emerges in the urban environment of Mecca and Medina in the hijazz,

in what is now Western Saudi Arabia. And the Prophet established himself, the Prophet Muhammad, established himself as effectively not just the Prophet of God, but also the secular leader of the growing Muslim community in Medina. And in the years that followed his death, the Arab Muslim army spread out and conquered the whole of the Near East and pushed on west into North Africa and east into Iran and what is now southern Pakistan and Central Asia.

And so in a very short period of time, what had started off as a small, theocratic state, if you like, a prophet-led state in Medina had become an enormous empire and whose rulers controlled lands where the inhabitants and many different religions and different languages and so on. Can I go back and just have a few more remarks about Mohammed himself? You tell us he was in trade, he was in law, he retreated to a get, so on. He was a military leader.

A bit more about him. Yes, his career falls into two distinct halves. The first part of his life, he was a prophet of God in Mecca, excuse me, who believed that he had a direct revelation from God. But before that he had a career, as it were. Before that he was a merchant, we're told, and because Mecca was a commercial centre, as well as the centre of an ancient shrine.

And he had travelled almost certainly to Syria, and he was a man of the world. In fact, he had quite a lot of experience of, as it were, politics in the world beyond Mecca. And so he was about 40 when he made this retreat. Yes. He made his retreat. He began to hear the word of God.

He began to preach the word of God in Mecca, and he made himself extremely unpopular because, amongst other things, he attacked selfishness, so he attacked the hoarding of wealth, he attacked the rich for not looking after the poor. And he made himself unpopular, and he eventually left Mecca in the Essex II2.

He made what's called the Hidra, the migration to Medina, which is about 200 miles away, at the invitation of the people of Medina who wanted him to act as an arbitrator originally, and he slowly became the ruler of the oasis of Medina. And right at the end of his life, he was able to really arrange a compromise after years of struggle, a compromise with the people of Mecca.

And so by the time of his death, Mecca and Medina jointly were the nucleus of a burgeoning in an expanding state. Just one more strand briefly. He also had great talent, so at least, as a military leader, which is an exceptional combination of talents one way or another. Yes, he certainly distinguished himself as a military leader. Set up a dynamic of expansion, which was extraordinary. But the real expansion,

comes in the years immediately after his death. Can you just tell us briefly some of the variety of cultures that he would have been surrounded by as a man in his 30s, 40s and early 50s? Mecca was the centre of a pagan cult, which had a number of different well-established gods. But there were in the surrounding area. There were Christian populations. And in Medina especially, there were Jewish populations.

So he would have come into contact with the, older monotheistic religions in the course of his wife. Robert Gle, what sort of legal system, if any, existed in the pre-Islamic Arabia before 630 or 640? Well, our sources on this are a few. We do have some inscriptions and some records in poetry, and clearly there was a legal system. Whether there was a unified legal system across the whole of Arabia is doubtful.

different tribal groupings had different legal traditions and certainly from the Muslim sources that we have from the early period we have descriptions of the pre-Islamic legal environment in which Muhammad operated and this period before Muhammad is called the Jahiliya which I suppose can be translated as the period of ignorance before people became aware of the truth of Islam and that's a Muslim description and the tendency is to describe

the pre-Islamic period as sort of as slightly barbaric and the Muslim period as progressive. Was it based on Bedouin traditions and was it rather to do with the Hamarabhi, eye for eye, tooth for two to us? No, it was primarily a tribal law. Different tribes had different laws.

There was a high emphasis, there was a strong emphasis on honour, on tribal honour, and there was a compensation culture in terms of crimes, for example, committed by one member of a tribe against another, which required retaliation, sometimes controlled retaliation, sometimes uncontrolled retaliation. In terms of family law, there was clearly customary practices which had some sort of legal, some sort of character of the law.

And the difference between custom and law at this early period is difficult to really draw a line. I'm not getting anything specific yet. Oh, yes. Well, if you want a specific example, for example, a woman had very little say in who she married, mainly the guardian of her. Her guardian contracted a marriage with a man. One of the things which Islam came to change, at least the Quran, gives evidence of the fact that women should receive an opportunity to choose their husband, and also the payment of the dower, for example, which was made by the husband to the guardian of the world. and normally the father, was now to be the woman's property.

So the Quran brings with it a set of legal ideas which sometimes reform, sometimes reject the laws which existed in the pre-Islamic period. How was Muhammad getting people to join him? Presumably they followed different gods, different religions, different tribal customs. What was he saying that was so attractive? Hughes mentioned at the beginning it was unpopular and he was unpopular and so.

But he very quickly won people over and very quickly, so what was he saying? In the early period he wasn't very successful in acquiring converts. He did acquire converts. I mean, he sort of didn't start going to his mid-forties. He died in his mid-60s and already he'd got a powerful force in play. That's quite a short time.

I think there are two elements really. is his personal role as an arbiter between conflicting tribal groupings, his ability to act as an honest broker between different groups and act with justice. This was certainly part of the description of Mohammed's role when he was in Medina after 622, after his move to Medina. And that's when really he managed to gain converts in significant numbers after 622. And his role as an arbiter, someone who acts with justice, is important. but also his message was of a god of justice who doesn't ignore the poor, who stands up for

the rights of the oppressed, and who challenges the the systems of religious belief and the wealth which comes with the religious systems of the pre-Islamic period in Arabia. He challenged that in such a way which was obviously appealing to a large number of people. And that success, in a sense, was partly down to the message as well as the man himself. And can we just go on for a little bit more about the message because however you say it took a long time. He goes to Medina in 622,

sets up a new, finds a new opportunity to set up his religion the way he wanted it. And 10 years later he is dead, but in that 10 years, he has established the core of what became and remains a massive world religion, it was a massive empire. And so I'm still not quite got

what central thing it was. Let's say that Christianity, one of the things of Christ said, oh, I promise you, I can give you eternal life. That's what I bring you, which nobody else is offering in the way I am. Was there anything like that with Muhammad? There was, to an extent, many of his converts, you could say, were converts of convenience in that they saw him developing as a military leader and as a statesman, and they saw which way the tide was turning,

and they made the pledge of allegiance to him on that basis. and after his death there was a series of rebellions about people who said we had a deal with Muhammad, we don't have a deal with Islam. So in this period of time, the idea of a key idea, which converts all of the tribes of the Arabian Peninsula, isn't quite fully formed.

But certainly one of the appeals of his message was this notion of a state which was moral, which was just, and which was ruled by a moral and just. man. Thank you very much. Man, Monsidiki, we tend to think of laws as being hard and fast rules. Is that how the Muslims would have seen

the law in the formative years of Islam in those early years, just in the time Mohammed and just afterwards? I think the very word law itself, when we talk about Islamic law, can be quite misleading because we do tend to see law as something that is transposed on society

in order to regulate society. But I think when you come to the formative years of Islamic law, what we're looking at, and I think I need to make a reference to the present day here, which is that when Muslims talk of Sharia, they mean Islamic law. But the early formative period of Islamic law was about uncovering the Sharia, which was contained in the Quran and which could be contained in the Prophet's words and lifestyle. Can you just tell everybody what precisely the Quran is?

The core of the Quran. The core of the Quran is the revelations that were given to the Prophet Mahal. during his lifetime from the age of 40 onwards until his death. And these are written down? These were written down. There's a lot of controversy as to how they were written down, when they were written down, and what we have as the full body of the corpus of the Quran,

as we see it today, and contemporary scholarship is debating, not just the formative compilation of the Quran, but actually how the Quran itself came to be in the book form that we have it. One thing that's interesting, there's great doubt as to whether this stuff existed at the time that Muhammad was alive,

but carbon dating, seems to prove that it was? Well, absolutely. I mean, there are, most scholars will defend that there are inscriptions, there are verses on papy, there are verses to be scattered, that are scattered around that form the basis of the compilation of the Quran. And that traditional scholarship has maintained that the full corpus of the Quran, as we have it,

was written down some 20 years after the Prophet's death. Now that is disputed by a lot of scholars as well. And so in a way, the Quran scholarship itself has gone in two decades, different directions. Those who are more interested in the formation of the Quran itself, how it came to be, and those who are more interested in the content of what the Quran actually says. As this is the core of it, the Quran, and the most important, these are the words of the prophet written down, and the prophet was guided. He claimed, he said, by God, this is the source, this is the core of it? How much legal advice is it contained? Can you give us some examples of the

legal advice, the Quran. I think we need to clear or clarify here that the Quran for Muslims themselves is not what the Prophet said, but what the Prophet was revealed, and that's what's written in the Quran. What the Prophet said is

contained in the other corpus of scriptural literature, which is Sahadi. So that those two are distinct pieces of literature, pieces of scripture. But the Quran itself, for many Muslims, The Quran would be seen as not a text of systematic theology.

It's not like the Bible, and it's not even a biography of the Prophet. But what it is is a fairly short piece of work, which not only has legalistic type of verses, but also all of the Quran is tied by one or two common themes. And I think the primary theme is the message of God's unity, the oneness of God, and that this message that has been given to Muhammad himself, is not new from the messages that were given to the Jews and Christians. However, one understands these Jews and Christians,

that these people were also given the message of one God who sends prophets and messengers to communities to lead them to the right path. That probably is the underlying message. Now, the way the Quran deals with this is not through lots and lots of narratives about different prophets, but actually about anecdotal evidence and allusions to past stories to confirm that this message is the same as previous messages. and all these previous prophets, whether we're Moses or Noah or all the other biblical prophets or Jesus himself, absolutely, were given the same message. Now, when it comes to Jews and Christians, our differences of opinion and how the Quran deals with them.

But there is this sense that the Quran itself is a continuation. But I want to concentrate on the legal side now. We must concentrate on. That's what we're talking about Islamic law. Can you just tell us, in the Quran itself, the revelation, What gives us some idea of the laws that we find there? Most people will argue that the socio-legal verses on the Quran are actually quite small in comparison to the text.

Well, they will deal with everything. They will deal with things to do with marriage, to do with divorce, and some of them are quite intricate, actually, in detail. Also to do with the punishments, those things that came to be considered as crimes against God. So you have punishments for alcohol or theft or armed robbery, and the whole issue of apostasy as well, though there is no punishment in the Quran for that.

But then also you have verses that are not legal, but point to a kind of the right way to be, how one treats one's partner, how one treats one's children, how children should treat their parents. So many of these verses, although not legal in the sense that we understand law, which is about rules and prescriptions, came to embody the basis of Islamic law. Hugh Kennedy, Muhammad died in 632.

What happened to Islam and the Quran after his death? Well, the Islamic community expanded enormously, as I was saying earlier, to become a huge empire rather than just a little local state. And inevitably, of course, it needed to have rules and regulations and so on for managing this huge area. And this is part of the basis of Islamic law. But something that Mona was saying, of course, is the Quran is not a legal textbook. It's a wonderful inspirational text.

It doesn't systematically go through all the things people need to know. So in the years after the Prophet's death, Muslims had to try to work out how to translate the prophetic inspiration into and solve everyday problems. And I think Islamic law emerges in a context, of this expanding state, a multicultural, multi-religious expanding state, and Muslims of the first and second generation asking what does a good Muslim do?

How do I be a good Muslim? And then you have to work on from there to say, well, who knows? Who do I ask? And how do these people know? And so I see Islamic law against the background of the expansion of the Muslim state, but asking questions about what do we do now. I want to come back to that in a minute, Mono.

I just want to ask Robert Gleave first, but Islam is spreading very quickly. It's coming up against other legal systems, other religions, but let's try to stick to legal systems. What's it doing with those legal systems? Is it abolish them? You tell me. Well, the official Muslim narrative

is that Islamic law pronounces the invalidity of other legal systems for the Muslim. population and exclusively claims the right of the Sharia as the way in which the Muslim community should be organized. Other legal systems, Judea's Jewish law or other legal systems which existed may be preserved within the communities specifically related to that legal system, but for the general population of Muslims, Islamic law trumps, if you like, the other legal systems

which exist. And when we look at it historically, we find certain elements of other legal systems which were, you could say, Islamised and brought into Islamic law. For example, certain tax laws, for example, which clearly a comprehensive tax system was not present in the Arabian Peninsula

at the time of the Prophet Muhammad, But as you've got a growing empire, you need a tax system in order to collect revenue and the maintenance of the state. And some of the taxes which existed within these conquered areas clearly continued under a new name, given and were Islamized and sometimes were attributed to the prophet himself. So they were sort of back projected to the profit himself in order to give the current system a level of, of religious legitimacy. But, Moena, what's happening? I'm not quite clear about this,

that they're going into different territories, as Hughes said, with enormous speed, whichever way you look at it. Are they allowing other systems to continue in parallel to their own as long as the respect of the state is given to them? Or are they saying, no,

your system is out of it now. You follow our system of law. If we look at this particular point in relation to to particular communities, which are the Jewish and Christian communities. And when you look at Islamic law broadly, you'll see that Islamic law pertains first and foremost to Muslims in Muslim countries, not to non-Muslims in Muslim countries,

as long as they abide by what the government of the state of that particular country is saying. So they're paying their taxes, they're abiding by the rules and regulations. But in issues of personal piety, on personal law of divorce, inheritance, marriage, those laws would not pertain to different, religious groups or different groups for non-Islamic. But I think it's also important just going back to what he was saying that in the development of Islamic law, that we have to understand that the person of Muhammad himself and how Muhammad came to be seen as somebody who embodied the normative way of how a Muslim should live

was itself disputed very in the 8th and 9th century. And so therefore it wasn't taken for granted that what Muhammad said should and could and must be the basis of law till after a great deal of dispute within the early juristic tradition because you had the Quran but because... Let's keep reminding ourselves

the Quran is... Is the word of God? Is divine revelation? Because there are three pillars of this forces of the Quran and then is the scholar but we'll get on to the scholars in a minute. But Muhammad himself remained such a significant figure and it was much later

really we're talking about the 9th century when there was some consensus that was emerging that no actually hadith, that is what the Prophet said had to be a significant had to be a basis for Islamic law. And therefore, and Islamic law could be legitimised by a prophetic Hadith, what the Prophet said. So Muhammad himself becomes a key figure, not just as a prophet or as a statesman or as a military person, but somebody who showed the law, somebody who showed how to live as a proper human being. And so therefore you can imagine that the whole discipline of Hadith,

what did Muhammad say, when did he say it, who did he do? say to, was it valid, was it weak? Did he really say this? This whole discipline became enormous because you had to know with some element of certainty or conviction, even though that's disputed, that Muhammad actually said things. And then, of course, the other thing to this is it just because he said something or did something, does that mean it should be part of the Islamic legal tradition? So I'm trying to get it clear. We've got the Quran, which is the revelation of God to Muhammad. We've got what Muhammad said in his lifetime, which is let's call that a second area.

And the third is when the scholars get working on this, and as you've indicated, Mona, start interpreting it and moving. These are the three, this is what we're dealing with in the first two centuries, and by 900 it's getting towards a sort of settlement. But probably before we go on to that, and before we go into more specific things about Islamic law, which I'd like to get to, there's another important principle, and that's reasoning by analogy, which comes into it when the scholars get held,

of it. Can you explain what that is? Well, we have the rules that were contained in the Quran and in the corpus of literature, which recorded the Prophet's statement, the Hadith literature, which together were taken as indicators of something called

his sunnah or his way of behaviour. The rules within those two groups were clearly not enough to cover all of the areas of human life, from the societal level down to the personal level. They weren't enough. New cases came up.

New experiences of the Muslim community required laws which weren't contained in those documents or those sources. And consequently a series of procedures whereby the limited rules within the texts

were able to be expanded to cover novel cases. So the classic example which is always given by the legal theorists is the case of wine drinking, which is grape wine is prohibited within the Quran, the consumption of grape wine is prohibited within the Quran. But what about other types of alcoholic and intoxicating beverages? Are they prohibited as well when the Quran only specifically mentions grape wine? And the analogical process was a means whereby the jurists,

the scholars, recognized the cause, the reason for God, prohibiting grape wine. They speculated about this and sometimes found statements of the prophet which said that it's this intoxicating quality of wine which prohibits it. Why is that? Why did they find? Well, the rationale, if you like,

the reason for the reason for the prohibition of wine is because it is viewed as something which affects behaviour in a negative way and can leave to the ignoring religious duties which an individual is supposed to carry out.

So there is a danger in consuming wine which can prevent full moral, religious life. So, but the key point is that it's prohibited because it's intoxicating. And by analogy, they apply that to other cases of intoxicating liquids such as the classic example is date wine, which is slightly weaker than grape wine. Is this prohibited or not? and the general regulation within,

the general rule which emerged was that all intoxicating liquids are, all intoxicating beverages are forbidden. And then it goes into drugs as well. And then later on, of course, there is an encounter with coffee and with other things which could be intoxicating. Are they forbidden or are they not forbidden? Hugh Kennedy, two questions, briefly, first of all,

was there a system of enforcement of these laws? What was it? Well, we must distinguish two things, how the law emerges and how it's enforced are different processes. And there becomes a way of enforcing law in certain areas. But a lot of Muslim law is connected with what we would think of as religious practice and not with criminal activity. In fact, traditional Islamic law has very little to say about criminal law. It's about inheritance law. It's about property law.

to their eldest son. It has to be spread around the family. Yes, exactly. So it's enforced by appeal to the court of the Qadi. The Qadi emerges very early in Islamic history as the arbitrator and decided. Akkadis were appointed by the government as local judges, basically. They didn't make the law, however. The law is, well, it's made by God, but it's described and investigated by the learned people, the jurisprudence is one term that's used. the people you ask about the law,

who in a sense academics, not judges. Can I ask you about this jurist called Shafee who seems, I hope I pronounce it probably, who seems to bring it all together in the 9th century and was mobbed and died so and afterwards for his pains, but he seems to have brought the thing together, the whole thing together. Can you just, is it possible to encapsulate what he did?

in a way if I could tell you what Hugh just said and what Robert just said the law is made by God and that's exactly the problem with Islamic law is that it's not made by God there may be

a very skeletal paradigm in the Quran itself or even in the Hadith but actually the work of jurisprudence is a human endeavour and all the time what they're trying to do is to discover uncover what God has said what is man's obedience to God

how does it look like in practical piety where we pray, where we dress, everything else. And that's why the Hadith and that's why Shafi becomes so important because by the 8th century, towards the middle of the 8th century, people were using the word sunnah and saying, what does this mean? Because Sunnah literally meant the way of a people, or the normative practice of a people.

What Shafi did in the 9th century was to actually articulate, and I'll try and keep this very simple, that Sunnah had to refer to the totality of the prophets life. Sunnah wasn't just a normative practice of a particular geographical area, whether it was in Medina or Kufa. Sunnah had to incorporate. The Hadith had to be part of Islamic law and that only hadith that could be very far, going back to the Prophet or his companions, could be part of Islamic law. So in a way what he did was to take away from the kind of normative practice to traditional practice of a particular area and how they practice their own laws and say that prophetic hadith

had to be the second fundamental pillar of Islamic law. Hugh. Yes, I think this is very important because the traditions, the hadith that come from the prophet, become fundamental to working up. What he said and what he's said, what he's reported to have said and to a lesser extent what he did. So it's what he said, not what God revealed to him.

Yes, that becomes, under Shafi's discussion, the fundamental basis of law as well as Quran. So you have to know what these traditions say, and an enormous number of traditions emerge. And some of them, all the early Muslims recognized, a certain number of the traditions are made up, and a certain number of them are genuine. How to distinguish between the genuine and the fabricated

becomes a major intellectual endeavor. And a whole critical mechanism is developed because it's very important to know what he actually said for the purposes of true religion. And so what this does is, means that deciding what Islamic law is is not a question of what judges decide. It's a question of what the scholars of traditions

find in the corpus of the traditions of the prophet. If you like, it's a literary historical excavation and investigation rather than deciding on the basis of equity and so on. There is this reasoning by analogy and so on. But in Shahfahid's scheme and generally in Sunni Islam, this takes very much second place to working out what the traditions of the Prophet are. Can we just conclude this section then, Robert briskly, by saying about them from Shafi

and the idea of the four separate schools of Islamic law springing up? There's a settlement there, and we can now go on to talk about specifics. There's a feeling of settlement. There's a feeling that they brought things. The force of Shafi's argument was almost irresistible for the rest of the Muslim community. Once, during the early period then and been a dispute about whether the sunnah of the prophet was the most important sunnah

or whether the sun of this community or that community or this particular figure was more important and do we do things because we've always done them this way or do they have to be traced back to the Prophet Muhammad? The force of Sharfis's argument was irresistible. All of the law that we proclaim that we live by should be traced back to the actions of the Prophet Muhammad or the Quran. and if they can't be traced back to the actions of the Prophet or the Quran,

then they must be inferred or deduced from those sources in a sound way. We don't just do things because we've always seen them. And all of the other jurists who were operating at the time in different areas of the Muslim world began to see the force of this argument and realise that if you're going to deny it, you're basically going to deny the importance of the Prophet Muhammad. And gradually, Shahfay's idea becomes the orthodoxy, if you look, like of the Muslim world. Now, I know it's very difficult to separate religious law from the rest of the law.

Maybe it's impossible. But I would very much like to get down to some specifics of Islamic law as to what it says that you have to do and is enforceable and enforced. So can we try to concentrate on that for us a programme, Mona? An important aspect, let's take, we've got some rough idea of the way these three things came together. And let's talk about the law with regard to the family and marriage and divorce. Can you just go for the specifics there, please? Yeah.

Just to add a caveat there, you talk about forcing and enforcing. But remember that this is jurisprudence that we're talking about. In these years, we're talking largely about juristic texts, which were not concerned so much with enforcement, but what might be the right behaviour. And that's why jurors with a lot of humility often added, and God knows best, but this is our opinion, or this is the opinion of our learned at school.

family law in terms of the law books are divided into their legal entries so the family law would come under different headings, the law of marriage, the law of divorce, the law of inheritance, etc., etc. And we have to bear in mind that we're talking about a time when law was oral in nature, largely oral.

And contracts, and marriage was a contract. So this was a contract that was oral in nature that didn't need to be written down and that was primarily seen as an analogous to the law of sale. I mean, people might you dispute that, but a lot of the vocabulary of the law of marriage was analogous to the law of sale.

What it basically meant, to the law of sale, which meant that you, two people came to consent to a marriage, but what was actually happening in contractual terms was that a payment was being made to the bride and she was now becoming sexually accessible to the ban. The notion of Nicar or Taswidge or the implication of some kind of marital union

was really about legitimising sexual intercourse. That's what marriage was. And so therefore it's... So there's no narrative about the beauty of marriage or marriage should be based on love or romance. The lawyers aren't interested in that. They're interested in duties and obligations of each party. And that's where you have the beginnings

of the laws of marriage. And what about divorce? Divorce is exactly the same. There's no stigma attached to it in the juristic texts. This is, the Quran is speaking to an audience where marriage is already an institution in some ways.

People know that marriage, people marry. People also divorce. Are we talking about monogamy or polygamy? What are we talking about? We're talking about both, monogamy and polygamy. But it also recognises divorce and divorce is seen as very much a rupture of a contract. So, of course, it would be better not to divorce.

You're better for social flourishing, for human flourishing, that people stay in families and have children, etc. But the divorce was an inevitable consequence of a marriage that might be unhappy or that might not be fruitful. And so therefore there were rules and regulations for divorce as well. What were they? Divorce is slightly odd because the classical formulation of divorce

is that a man must marry and must divorce his woman and orally proclaim that he intends to divorce her divorce. This is very complex, but over three periods. So three months should pass by. And the reason three months is given is that in that time there may be possibility that two may reunite. However, it came to be translated almost unanimously by many scholars as just pronouncing a divorce three times. And then the woman becomes divorced. Could the woman get a divorce?

The woman can get different types of separation. And divorce is one word which encapsulates so many different types of separation. but the exact translation equivalence in the Arabic would be a man pronounces divorce, but a woman is entitled to all forms of other separation as well. Hugh Kennedy, to what extent is this a criminal code? And again, could you give us some examples? I mean, you're a lurid examples that drift to the west. The traditional Islamic law is very little concerned with criminal law.

And nor is it to some extent, and what is that? It is to some extent that comes a consensus about punishments for adulteries. punishments for theft and so on. But in terms of what the lawyers are talking about, these are quite marginal. They're much more interested in common. They're quite dramatic, aren't there? Yes, they can be quite dramatic, certainly.

I mean, in terms of floggings and in terms of executions of one sort of another and amputations of the hands for theft and so on. But as I say, in terms of the intellectual debate, this is not really what lies at the centre of it. Perhaps I could just give you an illustration about how the sort of problems that Muslim lawyers do talk about, and that is what about the drinking of alcohol.

If you're sitting in your house and you become aware that your next-door neighbour is drinking alcohol, what should you do about it? Now, the lawyers don't talk about, oh, you should go to the police and have the place raided. That's because the state is not a player here. The question is, should you go into your neighbour's house and berate him and smash his wine jars, or should you not?

And there's one body of opinion which says, yes, you should, because he's violating Muslim norms. But then you come up against an equally important Muslim norm is that the house is sacred, in a sense. It is wrong to go into another person's house because you might find his women in a state of undress and it's his private property and so on. And so the consensus of law is that you shouldn't take direct action

to smash up the wine jars. You should remonstrate with him in the street for sure. But there is a balance of obligations here the obligation of public enforcement against the obligation of privacy. And the other thing to bear in mind is that the dramatic punishments that one finds stipulated within the Quran in the juristic literature, in the law, in the legal literature, are given an enormously high evidential bar.

For example, the punishment for adultery is severe, stoning to death if you're a married person engaged in adultery. But the evidentiary bar, what you have to, what the evidence which is required, in order to carry out that punishment is for people who actually see the act happening and witness it and this is a highly unlikely

circumstance to take place. And the jurists, I believe, the jurists are building in a whole series of caveats. They have a rule which they can't get rid of, but they're building in all sorts of caveats because they don't, they recognise the dramatic and almost barbaric nature of the punishment for adultery as stoning to death. So they build in a very high evidentiary bar,

which means that, in effect, the punishment becomes theoretical for them. It becomes a theoretical punishment. And the same is true for nearly all of these dramatic punishments, the amputation of the hand for theft and the lashes for alcohol, as Hugh has just been laying out. In order for these punishments to be carried out, jurists devised a system whereby they would only be carried out

in extreme circumstances and with a wealth of undeniable evidence. Mona, briefly I'm afraid. Can you just tell us something of the institutions of classical Sharia? We've heard the codes. How is it put forward in practice or put into practice?

It's very difficult to know exactly the kind of beginnings of when law became more institutionalised. And in what form that reflected itself, people have talked about even the schools of law, the Madhab, as being something that took on a later stage. And actually, what was really happening was that people of a certain...

People who followed a certain school had just actually attributed the name of that person or that person who was founded the... The four schools themselves. I've talked about the schools. What were the institutions? Well, the courts are where the courts are where the law is put into practice. That's not an institution.

But where actually you could learn the law where you could teach the law, that's actually quite difficult to ascertain. And some have argued that there might be analogous to the Latin Christendom Guild kind of institutions, colleges of higher learning. But again, that is much later. And it's very difficult to process. Actually, the formative period, how did that translate? from people aspiring to become devotees or disciples of former juries

into institutional practice. Hugh, was there a sort of permanent, is there a permanent feeling about the law by about the 10th century? Has it changed much since then? Yes, it becomes established in a series of... Has it changed much over the last thousand years in all that? No, but what has changed is people's attitudes to it, and particularly the role of the state as an enforcer of law,

which is almost non-existent in the early. amongst the early jurists becomes much more important in late years and particularly from the Wahhabi period in the 18th century onwards. So what starts off as much more a personal and religious law has in some cases been seen as a state law which should be enforced by state mechanisms. But that is quite, in most areas,

that's quite a modern development. And we know very little about what goes on in early times, but I'd just like to finish up perhaps with following on for something, Rob but just said that in the whole of my reading of Islamic history, I have never found any example of stoning to death by adultery being recorded in any historical text. Maybe I just haven't read enough, but that's the position. I doubt that. Thank you very much, Mona Sdiki, Hugh Kennedy, and Robert Gleave.

Next week, we're talking about Robert Burton's book on the Anatomy of Melancholy. Dr. Johnson said it was the only book who would get out of bed two hours early to read. Thanks for listening. We hope you've enjoyed this Radio 4. podcast. You can find hundreds of other programs about history, science and philosophy at BBC.com.com.uk forward slash radio four.