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CHAPTERI7 ls1am1c taw 111 Africa The histOnj ofIslamic law in Mrica is a vast and varied terrain, only roughly charted in now dated academic maps.l To venture through it, we need sturdy conceptual containers suitable for the many types of data to be collected. The most fundamental is that ofIslamic law itself The shari'a encompasses not only matters included in secular concepts of law, such as taxation, homicide, or inheritance , but also social and ritual comportment. What foods may one eat? What clothes may one wear? How and when should one pray? Wherever a variety ofcultural traditions are in competition, as in sub-Saharan Mrica, these are crucial questions . Islamic law itselfoffers a variety oftraditions. They serve as the basis for distinct ritual-legal communities within the wider community of Islam. There are the four classical madhahib (sing.: madhhab), the Hanafi, Maliki, Shafi'i, and Hanbali, and legal traditions associated with Shi'a and Ibadi Islam. Each tradition has developed a corpus of texts dealing with both general methods of legal reasoning and specific legal questions. In premodern settings, every region had its dominant tradition, but in some localities more than one tradition was present. An important question is how and why a particular tradition becomes established, and how it is adapted in day-to-day legal practice. The evidence we have on legal practice, especially prior to the twentieth century, is usually anecdotal, and not always reliable. So one must proceed with caution, first in describing legal practice, then in locating points of change and analyzing the factors behind it. Changing patterns ofproduction and trade, monetaty circulation, migration , technology, military organization, education, health and climatic conditions, and political and religious rivalry can all contribute to affecting the course of legal change. In colonial and independent Mrica, legal institutions of European origin, as well as customary ones, compete with Islamic law in responding to these changes.2 374 Islamic legal systems differ from traditional African ones in numerous ways, but they can be blended. Islamic law, in principle, is administered by literate specialists. But the ruler may assume a direct judicial role, in consultation with qualified legists, and the Islamic judge can be incorporated into a traditional system ofofficeholding. Islamic law places relatively greater emphasis on the rights and obligations of individuals , as opposed to kinship groups, in marriage, property relations, and obligations related to blood payments. It introduces a new concept ofstatus and associated rights based on religion rather than membership in a territorial or kinship community . But especially in the field ofreal property rights, Islamic legists in practice have accommodated a wide array of different customary practices. Islamic law affords protection to property owners against arbitrary taxation and seizure, though sometimes it serves more as a discourse of protest than a systematically observed code. It also provides a system of commercial law that can foster long-distance trade with other Muslim communities. And Islamic law rejects the notion that harm may be caused through the exercise of occult powers. In the analysis ofjudicial institutions and processes, it will be helpful to distinguish between three types that I will term inf()rmal, formal, and centralized. One can find a great many settings in the history of Islamic Africa where there is no organized state or where the state has but a limited role in judicial affairs. In such settings , people with questions on points of law might approach a local imam, a Quranic teacher, or a person with a pious reputation. This informal sector of the legal market still thrives in many parts of modern-day Islamic Africa, especially when it comes to matters of ritual and social comportment. Formality comes with the establishment of distinct judicial institutions, governed by a clear set of rules, with judicial authority delegated by the ruler, or even assumed directly by him. Here we encounter the classic Muslim judge, the qadi, and the mufti, or official jurisconsult, men of suitable legal learning and moral reputation , but also men willing to trim their religious sails to accommodate the political winds. The establishment of such formal legal authority seldom proceeds without trouble. Rare is the qadi who has not been the subject of accusations of favoritism, corruption, or toadyism. Underlying such accusations one can usually find factional intrigue and high economic stakes. The office of qadi is that point where government authority most directly impinges on day-to-day affairs. Where the articulation of state and society are only partial, as in most...

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