1. Damascus period (661-750), Umayyad dynasty.
2. Baghdad period (750-1258), Abbasid dynasty.
Umayyad dynasty. At this stage, the process of strengthening the state and strengthening the power of the Umayyads takes place through:
1. Islamization of the conquered population;
2. Arabization – Arba warriors populated the conquered territory, married representatives of the local population; held key positions in the state.
Under the first four caliphs, administration was conducted in Greek and Persian, as these were lands conquered from Byzantium and Iran. But under the Umayyad dynasty, the transition to Arabic begins.
Social structure in two stages:
1. Muslims paid zakat, a kind of voluntary payment to the wealthy, which accounted for a fortieth of income from real estate (2.5%).
2. Non-Muslims (dhimmis) paid a land tax – kharaj, which ranged from 1/3 to 2/3 of the crop and a poll tax – jizya. The size of taxes and their amount changed periodically, which led to revolts among the dhimmis.
State system of the Damascus period. At the first stage, the Arab Caliphate had a relatively centralized theocratic monarchy. In the hands of the caliph was concentrated spiritual (imamat) and secular (emirate) power, which was considered indivisible and unlimited. From the Umayyad dynasty, power was transferred according to the testamentary principle.
Later, the vizier became the chief adviser and the highest official under the caliph. According to Islamic law, viziers can be of two types: with broad power or with limited powers, i.e. only following the orders of the Caliph. In the early caliphate, the appointment of a vizier with limited power was practiced.
Important officials at the court included the head of the Caliph’s bodyguard, the head of the police, and a special official with the functions of supervising other officials.
The central organs of state administration were called sofas; these were special government offices. There were sofas of military affairs, internal affairs, the postal service (he performed the functions of the secret police).
Local government. By the 8th century the territory of the caliphate was divided into provinces headed by military governors appointed by the caliphs – emirs and their assistants – naibs.
Judicial system. Judicial functions were separated from administrative ones. Local authorities had no right to interfere in the decisions of judges. The administration of justice was carried out by the clergy.
The Caliph was the supreme judge. In practice, the supreme judicial power was exercised by a board of authoritative theologians, who were also jurists. On behalf of the caliph, they appointed lower judges from representatives of the clergy – qadis and special commissioners who controlled their activities on the ground. The functions of the qadi were extensive: consideration of court cases, monitoring the execution of decisions, supervision of places of detention, notaries, etc.
Fluctuations in tax policy and land use principles led to discontent among both Muslims and non-Muslims. As a result of these unrest, the Abbasid dynasty (750-1258) came to power. Having come to power, the Abbasids strive not to annex new lands, but to keep the old ones, but to no avail. By the 9th century the caliphate begins to disintegrate.
The reasons for the collapse are as follows:
1. There was an actual restriction of the secular and spiritual power of the caliph. The vizier, who turns into the actual head of the state, has great powers. The caliph shares spiritual power with the supreme qadi, who was in charge of the judges and the education system.
2. The role of the army, its influence on political life, has increased in the state mechanism. At the end of the 7th – the middle of the 8th centuries. military reforms are being carried out. Before the reform, the army consisted of two parts under the command of special commanders. It was a permanent army, consisting of Muslim soldiers (occupied a privileged position) and volunteers (militia). The army was replenished mainly due to the militias. Under the Abbasids, the militia was replaced by a professional mercenary army, the main place in which was occupied by the Caliph’s guard, made up of Mamluks. Mamluks – slaves of Turkic, Caucasian, Slavic origin, captured, bought or taken in the form of a tax “blood” from the conquered peoples. The Mamluks were brought up in Baghdad, were deprived of connections and relatives, and depended on the favors of the caliph. But soon the Mamluks begin to dictate their will to the caliphs, overthrow them and install their own.
3. Separatist tendencies in the provinces and the power of the emirs are intensifying, which is beginning to be inherited. At the end of the ninth century the caliphate breaks up into emirates and sultanates – independent states in Spain, Morocco, Egypt, Central Asia and Transcaucasia. The Caliph of Baghdad remained the spiritual head of the Sunnis, by the 10th century. controlled only part of Persia and the capital territory. In the XIII century. In the XVI century. the eastern caliphate was conquered by the Mongols and abolished. The caliph’s residence was moved to Cairo, in the western part of the Caliphate, which was conquered in the 16th century. Turkish sultans.
Basic features of law. Islam declared itself for the first time at the beginning of the 7th century AD. Literally, “Islam” is a person obedient to God. Little attention is paid to the inner world of a person and his condition, the main thing here is following the Koran. Gradually it became the legal norm.
Islamic law is religious law. Its disadvantage is that it cannot be codified. This is a very strict right: if a person does not observe it, he is not a Muslim. It developed by the 10th century and has not yet been influenced by any.
The main sources of Islamic law:
1. Koran – the holy book of Muslims, consisting of parables, prayers and sermons. The drafting of the final edition took place under Caliph Omar. Only 500 verses refer to the rules of conduct for Muslims (out of 6000), while only 80 can be considered as proper legal (mainly about marriage and family).
2. Sunnah (compiled on the basis of the testimony of tabigs – those who personally saw and heard the prophets) – consists of hadiths – numerous stories about the actions and judgments of Muhammad. Hadith contained many contradictory provisions and the choice of the most reliable of them was at the discretion of theologians and judges. The Sunnah contains the norms of marriage and inheritance, evidence and judicial law, rules on slaves, etc.
3. Ijma – the general consent of the Muslim community. Ijma was formed from concurring opinions on religious and legal issues that were expressed by the companions of Muhammad or (later) the most influential theologians – imams, muftis. The legitimacy of ijma was derived from the instruction of Muhammad: “If you yourself do not know, ask those who know.”
4. Fatwa – the decision and opinion of individual muftis on certain issues, the interpretation of the Koran or Sunnah by the authorities.
5. Kiyas (from the 10th century) – the solution of legal cases by analogy. It not only made it possible to quickly resolve new social relations, but also often became an instrument of outright arbitrariness.
6. Additional sources. local customs. The adats that had developed in the Arab society itself – urf – and among the conquered peoples were recognized. Firmans – decrees and orders of the caliphs. Eve – laws.
Assars are the decisions of the caliphs.
Sahih is a reliable tradition about the decision of the prophet.
Mantuk is insufficiently authoritative evidence of the decision of the prophet.
Mursal is a shaky evidence of the prophet’s decision.
Ichma – the consent of the entire community to the adoption of the norm. The justification of ichma is based on the following principle: the entire Islamic world is one community. All together they cannot be wrong.
Amal – jurisprudence (its type – qiyas – interpretation by analogy. Muchtahids – lawyers)
Urf (adat) – customary law.
Fiqh (ferman) is the law in our understanding.
In the Muslim religion, orthodox, orthodox orientation, numbering the majority of Muslims, as well as heresies are distinguished, however, they do not differ sharply in attitudes. Even under the first Abbasids, Muslim religious schools enjoyed great fame. Each school adhered to a certain sense (madhhab). Since 1300, the following orthodox interpretations have existed: 1. The Hanifite Madh-hab is the most liberal (Abu Hanif died in 767) and the most numerous. 2. Madh-hab of Malini – 1/7 of all Sunnuts (Milin ibn Anas died in 795). 3. Shafint Madh-hab – (Muhammed ibn Shifin died in 820). 4. The Hanbali Madh-hab is the most strict (Ahmed ibn Hanbal died in 855).
It was possible to move from one madhhab to another without formalities, it was possible both temporarily and forever.
Public law. There is no concept of a state, but there is a community (ummah) – an assembly of the faithful, it is controlled by Allah, before him everyone is equal. The community itself appoints the leader. Allah guides the ummah through the imam – a theocratic state.
At first, there was no strict monarchical principle. Caliph – spiritual leader, Vizier – secular.
A peculiar theory of the supreme sovereign power is the power of the caliph, the sultan, the padischah – the direct deputies of Allah on earth. They rule because it is the will of Allah to do so. The theory of secular power appeared from the Abassid dynasty, after the adoption of Islam.
The tasks of the existence of an Islamic state:
1. Protection of the Faith from the infidels.
2. proselytism – propaganda of Islam in the world. Power itself rests on 3 principles:
b) desire, will to power of the monarch;
c) Islam – unquestioning obedience to secular power.
1.calif – religious issues;
2. vizier – secular power through the Divan system. At the head of the sofas is a person reporting to the vizier.
3. Sofas, at their head – a person reporting to the vizier.
Ownership . Sharia did not know a clear division into separate branches of law. But the relations connected with the real right have been widely developed. In Muslim jurisprudence, the issue of legal capacity was developed in detail, which was granted to adults who were of sound mind. There was a concept of limited legal capacity.
Property relations: great attention was paid to the classification of things. State lands, lands of individuals, common property (air, sea, etc.) were allocated. The property of Muslims in unclean things was not recognized.
Ways of occurrence: conquered lands – the property of the state, other property was divided into several parts. In addition, inheritance, contract, finding things. There were lands withdrawn from circulation (vagf).
Contract law. In shiria, unlike Roman law, the general concept of obligation was not formulated. Obligations were divided into reimbursable and gratuitous, bilateral and unilateral (vows), urgent and indefinite.
The contract is a legal and at the same time divine bond. The duty to keep treaties is sacred.
Types of contracts: purchase and sale, loan, donation, hire, loan, storage.
There is no concept of usury (forbidden by Islam). To circumvent the ban, heyal was used – a special legal technique – a chain of a special kind of actions that do not formally contradict Islam, but the result turns out to be contradictory.
procedural law. Justice is administered by the clergy. The supreme judge of the state is the caliph. He could consider any case and make a decision on it.
The board of the most prominent theologians (at the same time jurists) appointed judges – qadis and commissioners who controlled the judges on the ground (both of them were representatives of the clergy). Judicial decisions and sentences of the qadi are final and not subject to appeal. Exceptions – the caliph himself or persons authorized by him changed the decisions of the qadi. The non-Muslim population was judged by representatives of the entire clergy.
The trial was of an accusatory nature. Cases were initiated by interested parties. There is no difference between criminal and civil cases. Court cases are considered publicly – in the mosque. The parties had to conduct their own case without resorting to the assistance of a lawyer. The process is verbal.
Evidence – confession, testimony of witnesses, oath.
The case had to be decided at one meeting and could not be postponed to the next day. Process – competition of the parties.
Marriage and Family Law . Marriage is a religious obligation for Muslims. In fact, the marriage contract acted as a trade deal. In fact, the father controlled the marriage fate of his daughters.
Marriage age – for women from 9 years old, for men earlier – the age of puberty. Shiites allowed temporary marriage for a fixed period. A Muslim could have four wives at the same time. The Muslim religion substantiated the humiliated and dependent position of women.
There were several types of divorces: in a simplified form – talaq – without explanation (only by a man). In the event of a divorce, the husband allocated the necessary property to his wife. The wife could demand a divorce only through the courts and only in certain cases.
Inheritance law was complex and confusing. There was inheritance by law and by will. The peculiarity of Shiriat was that only property rights were subject to inheritance, not obligations.
39 According to a number of Japanese scientists, the head allotment was an irrigated rice field.