Editing Sharia (section)

==Pre-modern Islamic legal system==
=== Jurists ===
{{Main|Mufti|Madrasa}}

Sharia was traditionally interpreted by [[mufti]]s. During the first few centuries of Islam, muftis were private legal specialists who normally also held other jobs. They issued [[fatwa]]s (legal opinions), generally free of charge, in response to questions from laypersons or requests for consultation coming from judges, which would be stated in general terms. Fatwas were regularly upheld in courts, and when they were not, it was usually because the fatwa was contradicted by a more authoritative legal opinion.{{sfn|Hallaq|2009|pp=9–10, 13}} The stature of jurists was determined by their scholarly reputation.{{sfn|Hallaq|2009|pp=9–10}}{{sfn|Stewart|2013|p=499}} The majority of classical legal works, written by author-jurists, were based in large part on fatwas of distinguished muftis.{{sfn|Hallaq|2009|pp=9–10}} These fatwas functioned as a form of legal [[precedent]], unlike court verdicts, which were valid only for the given case.{{sfn|Hallaq|2010|p=180}} Although independent muftis never disappeared, from the 12th century onward Muslim rulers began to appoint salaried muftis to answer questions from the public.{{sfn|Stewart|2013|p=501}} Over the centuries, [[Sunni]] muftis were gradually incorporated into state bureaucracies, while [[Shia]] jurists in Iran progressively asserted an autonomous authority starting from the early modern era.{{sfn|Dallal|Hendrickson|2009}}

[[File:Samarkand, Registan, Ulugbek Medressa (6238565020).jpg|thumb|[[Ulugh Beg Madrasa, Samarkand]] (est. 1422)]]
Islamic law was initially taught in study circles that gathered in mosques and private homes. The teacher, assisted by advanced students, provided commentary on concise treatises of law and examined the students' understanding of the text. This tradition continued to be practiced in ''[[madrasa]]s'', which spread during the 10th and 11th centuries.{{sfn|Hallaq|2009|pp=45–47}}{{sfn|Lapidus|2014|p=217}} Madrasas were institutions of higher learning devoted principally to study of law, but also offering other subjects such as theology, medicine, and mathematics. The madrasa complex usually consisted of a mosque, boarding house, and a library. It was maintained by a ''[[waqf]]'' (charitable endowment), which paid salaries of professors, stipends of students, and defrayed the costs of construction and maintenance. At the end of a course, the professor granted a license (''[[ijaza]]'') certifying a student's competence in its subject matter.{{sfn|Lapidus|2014|p=217}} Students specializing in law would complete a curriculum consisting of preparatory studies, the doctrines of a particular madhhab, and training in legal disputation, and finally write a dissertation, which earned them a license to teach and issue fatwas.{{sfn|Stewart|2013|p=501}}{{sfn|Hallaq|2009|pp=45–47}}

=== Courts ===
{{Main|Judge (Islamic law)|Mazalim|Shurta|Muhtasib}}
[[File:'Abd Allah ibn Shaykh Murshid al-Katib - Sa'di and a Dervish Go to Settle their Quarrel Before a Judge - Walters W618106B - Cropped.jpg|thumb|left|The poet [[Saadi Shirazi|Saadi]] and a [[dervish]] go to settle their quarrel before a judge (16th century Persian miniature).]]
A [[Judge (Islamic law)|judge]] (qadi) was in charge of the qadi's court (''mahkama''), also called the Sharia court. Qadis were trained in Islamic law, though not necessarily to a level required to issue fatwas.{{sfn|Vikør|2014}}{{sfn|Hallaq|2009|pp=11–12}} Court personnel also included a number of assistants performing various roles.{{sfn|Hallaq|2010|p=158}} Judges were theoretically independent in their decisions, though they were appointed by the ruler and often experienced pressure from members of the ruling elite where their interests were at play.{{sfn|Stewart|2013|p=501}} The role of qadis was to evaluate the evidence, establish the facts of the case, and issue a verdict based on the applicable rulings of Islamic jurisprudence.{{sfn|Vikør|2014}} The qadi was supposed to solicit a fatwa from a mufti if it was unclear how the law should be applied to the case.{{sfn|Vikør|2014}}{{sfn|Rabb|2009}} Since Islamic legal theory does not recognize the distinction between private and public law, court procedures were identical for civil and criminal cases, and required a private plaintiff to produce evidence against the defendant. The main type of evidence was oral witness testimony. The standards of evidence for criminal cases were so strict that a conviction was often difficult to obtain even for apparently clear-cut cases.{{sfn|Vikør|2014}} Most historians believe that because of these stringent procedural norms, qadi's courts at an early date lost their jurisdiction over criminal cases, which were instead handled in other types of courts.{{sfn|Tillier|2014}}

If an accusation did not result in a verdict in a qadi's court, the plaintiff could often pursue it in another type of court called the ''[[mazalim]]'' court, administered by the ruler's council.{{sfn|Vikør|2014}} The rationale for ''mazalim'' (lit. wrongs, grievances) courts was to address the wrongs that Sharia courts were unable to address, including complaints against government officials. Islamic jurists were commonly in attendance and a judge often presided over the court as a deputy of the ruler.{{sfn|Vikør|2014}}{{sfn|Stewart|2013|p=501}} ''Mazalim'' verdicts were supposed to conform to the spirit of Sharia, but they were not bound by the letter of the law or the procedural restrictions of qadi's courts.{{sfn|Vikør|2014}}{{sfn|Rabb|2009}}

The police (''[[shurta]]''), which took initiative in preventing and investigating crime, operated its own courts.{{sfn|Stewart|2013|p=501}} Like the mazalim courts, police courts were not bound by the rules of Sharia and had the powers to inflict discretionary punishments.{{sfn|Tillier|2014}} Another office for maintaining public order was the ''[[muhtasib]]'' (market inspector), who was charged with preventing fraud in economic transactions and infractions against public morality.{{sfn|Stewart|2013|p=501}} The ''muhtasib'' took an active role in pursuing these types of offenses and meted out punishments based on [[Urf|local custom]].{{sfn|Tillier|2014}}

=== Socio-political context ===
The social fabric of pre-modern Islamic societies was largely defined by close-knit communities organized around kinship groups and local neighborhoods. Conflicts between individuals had the potential to escalate into a conflict between their supporting groups and disrupt the life of the entire community. Court litigation was seen as a last resort for cases where informal mediation had failed. This attitude was reflected in the legal maxim  "amicable settlement is the best verdict" (''al-sulh sayyid al-ahkam''). In court disputes, qadis were generally less concerned with legal theory than with achieving an outcome that enabled the disputants to resume their previous social relationships. This could be accomplished by avoiding a total loss for the losing side or simply giving them a chance to articulate their position in public and obtain a measure of psychological vindication.{{sfn|Hallaq|2009|pp=57–60}}{{sfn|Hallaq|2009b|pp=159–62}} Islamic law required judges to be familiar with local customs, and they exercised a number of other public functions in the community, including mediation and arbitration, supervision of public works, auditing waqf finances, and looking after the interests of orphans.{{sfn|Hallaq|2009|pp=11–12}}{{sfn|Tillier|2014}}

[[File:Manuscript copy of al-Fatawa al-'Alamgiriyyah.jpg|thumb|Manuscript copy of al-Fatawa al-'Alamgiriyyah]]

Unlike pre-modern cultures where the ruling dynasty promulgated the law, Islamic law was formulated by religious scholars without involvement of the rulers. The law derived its authority not from political control, but rather from the collective doctrinal positions of the legal schools (madhhabs) in their capacity as interpreters of the scriptures. The [[ulema]] (religious scholars) were involved in management of communal affairs and acted as representatives of the Muslim population vis-à-vis the ruling dynasties, who before the modern era had limited capacity for direct governance.{{sfn|Hallaq|2010|pp=166–67}} Military elites relied on the ulema for religious legitimation, with financial support for religious institutions being one of the principal means through which these elites established their legitimacy.{{sfn|Berkey|2003|pp=225–26}}{{sfn|Hallaq|2010|pp=166–67}} In turn, the ulema depended on the support of the ruling elites for the continuing operation of religious institutions. Although the relationship between secular rulers and religious scholars underwent a number of shifts and transformations in different times and places, this mutual dependence characterized Islamic history until the start of the modern era.{{sfn|Hodgson|1974|pp=176–77}}{{sfn|Hallaq|2010|pp=166–67}} Additionally, since Sharia contained few provisions in several areas of public law, Muslim rulers were able to legislate various collections of economic, criminal and administrative laws outside the jurisdiction of Islamic jurists, the most famous of which is the ''[[Qanun (law)|qanun]]'' promulgated by Ottoman sultans beginning from the 15th century.{{sfn|Stewart|2013|p=500}} The [[Mughal Empire|Mughal]] emperor [[Aurangzeb]] (r. 1658–1707) issued a hybrid body of law known as [[Fatawa-e-Alamgiri]], based on [[Hanafi]] fatwas as well as decisions of Islamic courts, and made it applicable to all religious communities on the [[Indian subcontinent]]. This early attempt to turn Islamic law into semi-codified state legislation sparked rebellions against Mughal rule.{{sfn|Jones-Pauly|2009}}

==== Women, non-Muslims, slaves ====
{{Main|Women in Islam|Dhimmi|Islamic views on slavery|History of slavery in the Muslim world}}
In both the rules of civil disputes and application of penal law, classical Sharia distinguishes between men and women, between Muslims and non-Muslims, and between free persons and slaves.{{sfn|Vikør|2014}}

[[File:Slavezanzibar2.JPG|thumb|180 px|[[Zanzibar]] child slave sentenced to transport logs by Arab master in Sultanate, 1890s]]
Traditional Islamic law assumes a patriarchal society with a man at the head of the household.{{sfn|Stewart|2013|p=502}} Different legal schools formulated a variety of legal norms which could be manipulated to the advantage of men or women,{{sfn|Lapidus|Salaymeh|2014|p=212}} but women were generally at a disadvantage with respect to the rules of inheritance and witness testimony, where in some cases a woman's witness testimony is effectively treated as half of that of a man.{{sfn|Stewart|2013|p=502}} Various financial obligations imposed on the husband acted as a deterrent against [[Triple talaq|unilateral divorce]] and commonly gave the wife financial leverage in divorce proceedings.{{sfn|Lapidus|Salaymeh|2014|p=212}} Women were active in Sharia courts as both plaintiffs and defendants in a wide variety of cases, though some opted to be represented by a male relative.{{sfn|Lapidus|Salaymeh|2014|p=213}}{{sfn|Vikør|2014}}

Sharia was intended to regulate affairs of the Muslim community.{{sfn|Vikør|2014}} Non-Muslims residing under Islamic rule had the legal status of [[dhimmi]], which entailed a number of protections, restrictions, freedoms and legal inequalities, including payment of the [[jizya]] tax.{{sfn|Nettler|2009}} Dhimmi communities had legal autonomy to adjudicate their internal affairs. Cases involving litigants from two different religious groups fell under jurisdiction of Sharia courts,{{sfn|Vikør|2014}} where (unlike in secular courts){{sfn|Esposito|DeLong-Bas|2018|p=85}} testimony of non-Muslim witnesses against a Muslim was inadmissible in criminal cases{{sfn|Masters|2009}} or at all.{{sfn|Lapidus|2014|p=351}} This legal framework was implemented with varying degree of rigor. In some periods or towns, all inhabitants apparently used the same court without regard for their religious affiliation.{{sfn|Vikør|2014}} The Mughal emperor Aurangzeb imposed Islamic law on all his subjects, including provisions traditionally applicable only to Muslims, while some of his predecessors and successors are said to have abolished jizya.{{sfn|Jones-Pauly|2009}}{{sfn|Hardy|1991|p=566}}  According to Ottoman records, non-Muslim women took their cases to a Sharia court when they expected a more favorable outcome on marital, divorce and property questions than in Christian and Jewish courts.{{sfn|Lapidus|Salaymeh|2014|p=360}}  Over time, non Muslims in the Ottoman Empire could be more or less likely to use Islamic courts. For example, in 1729 at the Islamic court in [[Galata]] only two percent of cases involved non-Muslims whereas in 1789 non-Muslims were a part of thirty percent of cases.'''<ref>{{Cite journal|last=Gocek|first=Fatma Muge|date=2005|title=The Legal Recourse of Minorities in History: Eighteenth-Century Appeals to the Islamic Court of Galata|journal=Interdisciplinary Journal of Middle Eastern Studies|pages=53, 54}}</ref> '''Ottoman court records also reflect the use of Islamic courts by formerly non-Muslim women.'''<ref name=":2">{{Cite journal|last=Baer|first=Marc|date=August 2004|title=Islamic Conversion Narratives of Women: Social Change and Gendered Religious Hierarchy in Early Modern Ottoman Istanbul|journal=Gender & History|volume=16|issue=2 |pages=426, 427|doi=10.1111/j.0953-5233.2004.00347.x|s2cid=145552242 }}</ref> '''As it was illegal for non-Muslims to own Muslims and for non-Muslim men to marry Muslim women in the Ottoman empire, conversion to Islam would have been an option for non-Muslim women to free themselves of a spouse or master they did not want to subject to.'''<ref name=":2" /> '''However, this would likely lead to them being shunned by their former community.<ref name=":2" />

[[File:V.M. Doroshevich-East and War-Eunuch near Door of Sultan's Harem.png|thumb|Chief Eunuch of [[Abdul Hamid II]] (1912)]]
Classical fiqh acknowledges and regulates slavery as a legitimate institution.{{sfn|Stewart|2013|p=502}} It granted slaves certain rights and protections, improving their status relative to Greek and Roman law, and restricted the scenarios under which people could be enslaved.{{sfn|Lewis|1992|p=7}}{{sfn|El Achi|2018}} However, slaves could not inherit or enter into a contract, and were subject to their master's will in a number of ways.{{sfn|Lewis|1992|p=7}}{{sfn|El Achi|2018}} The labor and property of slaves were owned by the master, who was also entitled to sexual submission of his unmarried slaves.{{sfn|El Achi|2018}}{{sfn|Ali|2010|p=39}}

Formal legal disabilities for some groups coexisted with a legal culture that viewed Sharia as a reflection of universal principles of justice, which involved protection of the weak against injustices committed by the strong. This conception was reinforced by the historical practice of Sharia courts, where peasants "almost always" won cases against oppressive landowners, and non-Muslims often prevailed in disputes against Muslims, including such powerful figures as the governor of their province.{{sfn|Hallaq|2009|p=61}}{{sfn|Hallaq|2009b|p=167}} In family matters the Sharia court was seen as a place where the rights of women could be asserted against their husband's transgressions.{{sfn|Vikør|2014}}