Arabs have long inhabited the Arabian Peninsula, most of whose territory is occupied by deserts and dry steppes. Bedouin nomads moved in search of pastures with herds of camels, sheep and horses. An important trade route passed along the coast of the Red Sea. Here cities arose in oases, and later the largest shopping mall became Mecca. Muhammad, the founder of Islam, was born in Mecca.

After Muhammad's death in 632, secular and spiritual power in the state that united all Arabs passed to his closest associates - the caliphs. It was believed that the caliph ("caliph" in Arabic - deputy, governor) only replaces the deceased prophet in the state, called the "caliphate". The first four caliphs - Abu Bakr, Omar, Osman and Ali, who ruled one after the other, went down in history as "righteous caliphs." They were succeeded by caliphs from the Umayyad family (661-750).

Under the first caliphs, the Arabs began to conquer outside of Arabia, spreading new religion Islam among the peoples they conquered. Within a few years, Syria, Palestine, Mesopotamia and Iran were conquered, the Arabs broke into Northern India and Central Asia. Neither Sassanid Iran nor Byzantium, bled white by years of wars against each other, could offer them serious resistance. In 637, after a long siege, Jerusalem passed into the hands of the Arabs. The Church of the Holy Sepulcher and other Christian churches were not touched by Muslims. In 751, in Central Asia, the Arabs fought the army of the Chinese emperor. Although the Arabs were victorious, they no longer had the strength to continue their conquest further east.

Another part of the Arab army conquered Egypt, victoriously moved along the coast of Africa to the west, and at the beginning of the 8th century, the Arab commander Tariq ibn Ziyad crossed the Strait of Gibraltar to the Iberian Peninsula (to modern Spain). The army of the Visigothic kings who ruled there was defeated, and by 714 almost the entire Iberian Peninsula was conquered, with the exception of a small area inhabited by the Basques. Having crossed the Pyrenees, the Arabs (in European chronicles they are called Saracens) invaded Aquitaine, occupied the cities of Narbonne, Carcassonne and Nimes. By 732, the Arabs reached the city of Tours, but at Poitiers they suffered a crushing defeat from the combined troops of the Franks, led by Charles Martell. After that, further conquests were suspended, and the reconquest of the lands occupied by the Arabs - the Reconquista - began on the Iberian Peninsula.

The Arabs unsuccessfully tried to take Constantinople as well - either by surprise attacks from the sea and from land, or by a stubborn siege (in 717). Arab cavalry penetrated even the Balkan Peninsula.

By the middle of the 8th century, the territory of the caliphate had reached its largest size. The power of the caliphs then extended from the Indus River in the east to the Atlantic Ocean in the west, from the Caspian Sea in the north to the Nile rapids in the south.

Damascus in Syria became the capital of the Umayyad Caliphate. When the Umayyads were overthrown by the Abbasids (descendants of Abbas, Muhammad's uncle) in 750, the capital of the Caliphate was moved from Damascus to Baghdad.

The most famous Caliph of Baghdad was Harun ar-Rashid (786-809). In Baghdad, under him, a huge number of palaces and mosques were built, striking with their splendor all European travelers. But the amazing Arabic tales of the Thousand and One Nights made this caliph famous.

However, the flourishing of the caliphate and its very unity proved to be fragile. Already in the 8th-9th centuries, a wave of rebellions and popular unrest swept through. Under the Abbasids, the huge caliphate began to rapidly disintegrate into separate emirates headed by emirs. On the outskirts of the empire, power passed to the dynasties of local rulers.

As early as 756, an emirate arose on the Iberian Peninsula with the main city of Cordoba (since 929 - the Caliphate of Cordoba). The Spanish Umayyads, who did not recognize the Baghdad Abbasids, ruled in the Emirate of Cordoba. After some time, independent dynasties began to appear in North Africa (Idrisids, Aghlabids, Fatimids), Egypt (Tulunids, Ikhshidids), in Central Asia (Samanids) and in other areas.

In the 10th century, the once united caliphate broke up into several independent states. After Baghdad was captured by representatives of the Iranian family of Buyids in 945, only spiritual power was left to the Baghdad caliphs, they turned into a kind of “popes of the East”. The Caliphate of Baghdad finally fell in 1258, when the Mongols captured Baghdad.

One of the descendants of the last Arab caliph fled to Egypt, where he and his descendants remained nominal caliphs until the conquest of Cairo in 1517 by the Ottoman sultan Selim I, who proclaimed himself caliph of the faithful.

Introduction

The most prosperous state of the Mediterranean throughout the Middle Ages, along with Byzantium, became Arab Caliphate, created by the prophet Mohammed (Mohammed, Mohammed) and his successors. In Asia, as in Europe, military-feudal and military-bureaucratic public entities, as a rule, as a result of military conquest and annexations. This is how the Mughal empire arose in India, the empire of the Tang dynasty in China, etc. A strong integrating role fell Christian religion in Europe, Buddhist in the states of Southeast Asia, Islamic in the Arabian Peninsula.

The coexistence of domestic and state slavery with feudal-dependent and tribal relations continued in some countries of Asia even during this historical period.

The Arabian Peninsula, where the first Islamic state arose, is located between Iran and Northeast Africa. At the time of the Prophet Mohammed, who was born around 570, it was sparsely populated. The Arabs were then a nomadic people and, with the help of camels and other pack animals, provided trade and caravan links between India and Syria, and then North African and European countries. The Arab tribes were also concerned about ensuring the safety of trade routes with oriental spices and handicrafts, and this circumstance served as a favorable factor in the formation of the Arab state.

1. State and law in the early period of the Arab Caliphate

Arab tribes of nomads and farmers inhabited the territory of the Arabian Peninsula from ancient times. On the basis of agricultural civilizations in the south of Arabia, already in the 1st millennium BC. early states arose similar to the ancient Eastern monarchies: the Sabaean kingdom (VII-II centuries BC), Nabatia (VI-I centuries). In large trading cities, city self-government was formed according to the type of an Asia Minor policy. One of the last early South Arab states - the Himyarite kingdom - fell under the blows of Ethiopia, and then the Iranian rulers at the beginning of the 6th century.

By the VI-VII centuries. the bulk of the Arab tribes were at the stage of supra-communal administration. Nomads, merchants, farmers of the oases (mainly around the sanctuaries) united family by family into large clans, clans into tribes. The head of such a tribe was considered an elder - a seid (sheikh). He was both the supreme judge, and the military leader, and the general leader of the assembly of clans. There was also a meeting of elders - Majlis. Arab tribes also settled outside Arabia - in Syria, Mesopotamia, on the borders of Byzantium, forming temporary tribal unions.

The development of agriculture and animal husbandry leads to the property differentiation of society, to the use of slave labor. The leaders of clans and tribes (sheikhs, seids) base their power not only on customs, authority and respect, but also on economic power. Among the Bedouins (inhabitants of the steppes and semi-deserts) there are salukhs that do not have a means of subsistence (animals) and even taridi (robbers), who were expelled from the tribe.

The religious ideas of the Arabs were not united into some kind of ideological system. Fetishism, totemism and animism were united. Christianity and Judaism were widespread.

In VI Art. on the Arabian Peninsula there were several independent one from one pre-feudal states. The elders of the clans and the tribal nobility concentrated many animals, especially camels. In areas where agriculture was developed, a process of feudalization took place. This process swept the city-states, in particular Mecca. On this basis, a religious and political movement arose - the Caliphate. This movement was directed against tribal cults for the creation common religion with one deity.

The caliph movement was directed against the tribal nobility, in whose hands was power in the Arab pre-feudal states. It arose in those centers of Arabia where the feudal system acquired greater development and significance - in Yemen and the city of Yathrib, it also covered Mecca, where Muhammad was one of its representatives.

The nobility of Mecca opposed Muhammad, and in 622 he was forced to flee to Medina, where he found support from the local nobility, which was dissatisfied with the competition from the nobility of Mecca.

A few years later, the Arab population of Medina became part of the Muslim community, which was led by Muhammad. He performed not only the functions of the ruler of Medina, but was also a military leader.

The essence of the new religion was the recognition of Allah as a single deity, and Muhammad as his prophet. It is recommended to pray every day, count the fortieth part of income in favor of the poor, and fast. Muslims must take part in the holy war against the infidels. The previous division of the population into clans and tribes, from which almost every state formation began, was undermined.

Muhammad proclaimed the need for a new order, excluding tribal strife. All Arabs, regardless of their tribal origin, were called upon to form a single nationality. Their head was to be the prophet-messenger of God on earth. The only conditions for joining this community were the recognition of a new religion and the strict observance of its prescriptions.

Mohammed quickly gathered a significant number of adherents and already in 630 managed to settle in Mecca, the inhabitants of which by that time were imbued with his faith and teachings. The new religion was called Islam (peace with God, obedience to the will of Allah) and quickly spread throughout the peninsula and beyond. In dealing with representatives of other religions - Christians, Jews and Zoroastrians - the followers of Mohammed maintained religious tolerance. In the first centuries of the spread of Islam, on Umayyad and Abbasid coins, a saying was minted from the Koran (Sura 9.33 and Sura 61.9) about the prophet Mohammed, whose name means “gift of God”: “Mohammed is the messenger of God, whom God sent with instruction to the right path and with true faith, in order to exalt it above all faiths, even if the polytheists were dissatisfied with this.

New ideas found zealous supporters among the poor. They converted to Islam, because they had long lost faith in the power of tribal gods, who did not protect them from disasters and devastation.

Initially, the movement was popular in nature, which scared away the rich, but this did not last long. The actions of the adherents of Islam convinced the nobility that the new religion did not threaten their fundamental interests. Soon, representatives of the tribal and trading elites became part of the ruling elite of Muslims.

By this time (20–30 years of the 7th century), the organizational formation of the Muslim religious community headed by Muhammad was completed. The military detachments she created fought for the unification of the country under the banner of Islam. The activities of this military-religious organization gradually acquired a political character.

Having first united the tribes of two rival cities - Mecca and Yathrib (Medina) - under his rule, Muhammad led the struggle to unite all Arabs into a new semi-state, semi-religious community (ummah). At the beginning of the 630s. a significant part of the Arabian Peninsula recognized the authority and authority of Muhammad. Under his leadership, a kind of proto-state was formed with the spiritual and political power of the prophet at the same time, relying on the military and administrative powers of new supporters - the Muhajirs.

By the time of the Prophet's death, almost all of Arabia fell under his rule, his first successors - Abu Bakr, Omar, Osman, Ali, called the Righteous Caliphs (from "caliph" - successor, deputy), - stayed with him in friendly and family ties. Already under Caliph Omar (634 - 644), Damascus, Syria, Palestine and Phoenicia, and then Egypt, were annexed to this state. In the east, the Arab state expanded through the territory of Mesopotamia and Persia. During the next century, the Arabs conquer North Africa and Spain, but fail twice in the conquest of Constantinople, and later in France are defeated at Poitiers (732), but in Spain they hold their dominance for another seven centuries.

30 years after the death of the prophet, Islam was divided into three large sects, or currents - the Sunnis (who relied on the theological and legal issues on the Sunnah - a collection of traditions about the words and deeds of the prophet), Shiites (considered themselves more accurate followers and spokesmen of the views of the prophet, as well as more accurate executors of the orders of the Koran) and the Kharijites (who took as a model the policy and practice of the first two caliphs - Abu Bakr and Omar).

With the expansion of the borders of the state, Islamic theological and legal constructions were influenced by more educated foreigners and non-believers. This affected the interpretation of the Sunnah and fiqh (jurisprudence) closely related to it.

The Umayyad dynasty (from 661), which carried out the conquest of Spain, moved the capital to Damascus, and the Abbasid dynasty following them (from the descendants of the prophet named Abba, from 750) ruled from Baghdad for 500 years. By the end of the X century. The Arab state, which had previously united peoples from the Pyrenees and Morocco to Fergana and Persia, was divided into three caliphates - the Abbasids in Baghdad, the Fatimids in Cairo and the Umayyads in Spain.

The emerging state solved one of the most important tasks facing the country - overcoming tribal separatism. By the middle of the 7th century the unification of Arabia was basically complete.

Muhammad's death raised the question of his successors as the supreme head of the Muslims. By this time, his closest relatives and associates (tribal and merchant nobility) had consolidated into a privileged group. From its midst, they began to choose new individual leaders of Muslims - caliphs (“deputies of the prophet”).

After the death of Muhammad, the unification of the Arab tribes continued. Power in the union of tribes was transferred to the spiritual heir of the prophet - the caliph. Internal struggles were suppressed. During the reign of the first four caliphs (“righteous ones”), the Arab proto-state, relying on the general armament of nomads, began to expand rapidly at the expense of neighboring states.

One of the important incentives for the movement of the Arabs to new lands was the relative overpopulation of Arabia. The indigenous inhabitants of the conquered lands almost did not resist the newcomers, since before that they were under the yoke of other states that exploited them mercilessly, and were not interested in protecting the old masters and their orders.

The conquests were continued during the reign of the Umayyad caliphs (661-750). At this time, the Arabs subjugated Syria, Iran, North Africa, Egypt, Central Asia, Transcaucasia, Afghanistan, many possessions of the Byzantine Empire, Spain and even islands in the Mediterranean Sea. A supranational empire was formed, the unity of which was based on Islam and a new military and tax system. The statehood of the early caliphate was poorly developed, the system of administration was adopted from the conquered Iran and Byzantium. Most of the land was declared the property of the state, and on this basis (according to the Byzantine model) a system of semi-feudal grants began to form under the condition of military service. The basis of their own tax system was the privileged taxation of orthodox Muslims and the burdening of non-believers. At the beginning of the 8th century statehood began to take on a more formalized form: the minting of its own coins began, the Arabic language became the national language.

As a result, a new large state arose on the conquered lands - the Arab Caliphate. . Arabia was also included.

For their new homeland, a new religion, the Arabs received in return the productive forces that were at a relatively high level of development. Entering the areas of ancient culture (Mesopotamia, Syria, Egypt), they found themselves in the grip of a deep social upheaval unfolding here, the main direction of which was the formation of feudalism. Under the influence of this process, the decomposition of the primitive communal system among the Arabs was quickly completed.

Arab feudalism, along with the main features common to the feudal society of any country, was characterized by important features.

The degree of development of feudalism in certain areas of the Caliphate was not the same. It was directly dependent on the level of their socio-economic development that preceded the conquest. If in Syria, Iraq, Egypt feudalism dominated almost completely, then in most of Arabia significant remnants of the tribal system were preserved.

2. State and law in the late period of the Arab Caliphate

At the end of the 8th century new trends in the development of the Arab state were outlined. The local nobility, having gained a foothold in the conquered countries, lost interest in the unity of the Caliphate. Caliphs became the rulers of the Arab state. The caliph was considered a full-fledged viceroy of the prophet with all secular and spiritual rights. Later, the caliph was considered directly the deputy of Allah himself. His powers were limited only by the instructions of the Koran. Moreover, the decrees and judicial decisions of the first four caliphs, the immediate successors of the prophet, even received the meaning of sacred tradition (sunnah).

During the first 60 years of the state, the caliphs were elected either by the council of the tribal nobility, or by the decision of "all Muslims" (ie Mecca and Medina). With the rule of the Umayyads, the power of the caliph became hereditary in the clan, although an absolutely verified tradition did not develop.

After internal unrest, the rule in the empire passed to the dynasty of pro-Iranian rulers - the Abbasids (750-1258). The most famous of the Abbasids were Caliph Haroun al-Rashid, who became one of the characters in the Thousand and One Nights, as well as his son al-Mamun. These were enlightened autocrats who combined concerns about spiritual and secular education. Naturally, in the role of caliphs, they were also occupied with the problems of spreading the new faith, perceived by themselves and their subjects as a commandment to live in equality and universal brotherhood of all true believers. The duty of the ruler in this case was to be a just, wise and merciful ruler. Enlightened caliphs combined the care of administration, finance, justice, and the military with support for education, art, literature, science, and trade and commerce. The latter were understood as intermediary operations and services related to transportation, warehousing, resale of goods and usury.

As in previous historical epochs, an important role was assigned to the methods of assimilation of the heritage and experience of highly developed ancient cultures and civilizations. In the past, the Greeks adopted writing from the Phoenicians and some philosophical constructions from the eastern sages (Egyptian, Mesopotamian, possibly Indian). After 10 centuries, the ancient Greco-Roman heritage facilitated the formation of the Arab-Muslim culture, which for several centuries continued the cultural work that was interrupted for one reason or another in the Greco-Latin world.

The Arab-Muslim world, in the course of assimilation and processing of the ancient heritage, brought to the public arena such outstanding thinkers and figures as Avicenna (980 - 1037), ibn Rushd (lat. Averroes, b. 1126) and ibn Khaldun (XIV century). Ibn Khaldun lived in North Africa and tried (only in Arabic literature) to move from narrative history to pragmatic (utilitarian scientific) history in order to establish and describe the laws of world (in this case, within the Arab Caliphate and its environment) social history. He considered history as a “new science”, and considered the main area of ​​historical change not to be changes in political forms, as the ancient Greeks once did, but the conditions of economic life, which have a strong influence on the transition from rural and nomadic life to urban life and customs.

It is characteristic at the same time that for the Arab historian throughout the world and his history, only the cultural merits of Muslims as a whole existed as significant. Thus, he places the historically new culture of the Muslim peoples above all others, but notes its decline and predicts its death.

Baghdad became the capital of the state. The peculiar relations of state service feudalism were strengthened in the state. The property of religious Muslim institutions (waqf) became isolated.

During the reign of the Abbasids, the position of the caliph changed dramatically. Next to him was a secular ruler - the sultan, to whom the army, bureaucracy, local rulers, and administration were subordinate. The Caliph retained spiritual powers, as well as the highest judicial power.

Until the tenth century Arab statehood was formed mainly by a military organization (united by constant conquests), a unified tax system and a common political and religious authority. There was no general administration.

By the beginning of the tenth century under the caliphs, the position of vizier appears - first the eldest of the officials, then the head of the government and the entire administration of the empire. The vizier was appointed by the Caliph, presenting the steward with a special attire. The vizier ran the state administration on his own, providing the caliph (sultan) with weekly reports on affairs. His position at the end of the tenth century. became hereditary in childbirth, and the "sons of viziers" formed, as it were, a special layer of the highest bureaucracy. By the 11th century the importance of the post of vizier fell, sometimes even two viziers were appointed, including even from Christians.

Province-provinces existed in the caliphate separately from each other and from the central government. The rulers of the regions bore the title of emir (supreme). Often, having secured hereditary power for their clan, the emirs also took more sonorous titles - Shahinshah, etc. Both politically and legally, they had almost complete power in their province, subject to the religious authority of the caliph and the central administration.

Each region-province had its own representative office in the capital of the Caliphate, Baghdad - a divan that dealt with its affairs. In turn, the regional divan was divided into 2 departments: the main one, which was in charge of the distribution and collection of taxes, land policy, and financial (winter). At the end of the ninth century one of the caliphs united the regional sofas into a department of the court, trying to create from this a semblance of a central administration, where there would be subdivisions for enlarged regions: the offices for the West, for the East and for Babylonia. After several transformations associated with a general strengthening of centralized power in the middle of the tenth century. a centralized administration was formed at the court of the Baghdad caliphs.

The most important was the military department (all of them were called divans), where there were a chamber for military expenses and a chamber for recruiting troops. Separate military units were controlled independently. The most ramified was the department of expenses, designed to serve the court. It had up to 6 special chambers of advisers for various matters. The State Treasury was the control department where the books of the treasury were kept. The Department of Confiscations conducted office work on such an important article of the relationship between the authorities and subjects who violated the order and laws of the service. A special office of letters was engaged in the preparation of all kinds of documents and letters of appointment; she also conducted the correspondence of the caliph.

One of the most important in fact was the Main Department of Roads and Posts, which controlled individual postal and road officials. The officials of this department had the duty of explicitly and secretly informing the authorities about what was happening in the empire, so it was in charge of a network of informants. A special department was represented by the Caliph's office, where clerical work was carried out on petitions. In the press department, after agreement in other departments, the caliph's orders were given force. Separately, there was a banking department, the most unique institution where money was exchanged and other payments were made.

Managers of departments (sahibs) were divided into three ranks. According to the ranks, they were assigned a salary. True, over time, a tradition has developed to pay state salaries for only 10 out of 12 months of the year. However, the practice of numerous combinations of posts helped out.

The governors of the provinces had their own viziers. The provincial administration was also represented by the commander of the regional troops - amir and the civil ruler - amil; The duties of the latter mainly included the collection of taxes.

Officials could be recruited only from the free and constituted, as it were, a special estate. The military officers were mainly recruited from the not free. This made them more personally dependent on the supreme commander and on the caliph. Receiving a significant salary, the officials themselves had to maintain their offices, scribes and other petty employees.

The courts of Muslim law constituted, as it were, the second (along with the financial administration) part of the state organization; in fact, the judicial power in the doctrine of Islam belonged to the prophet and caliphs as the bearers of justice.

Initially, the caliphs themselves did the court. In the provinces, this was done on their behalf by the emirs. Over time, managerial and spiritual duties required the creation of special judges - qadis.

Qadis always remained under the supreme authority of the caliphs, and the highest officials could overrule their decisions. Actually judicial instances, appeals, etc. did not exist in Muslim law. Only the supreme power could complain. In the ninth century qadis were removed from the power of the emirs of the provinces, and everyone, including the main cities, was directly appointed by the caliph. The right to appoint judges was retained by the caliphs even when most of their secular and political powers were taken away from them by the sultans. If a qadi was appointed by a non-caliph, his rights were in doubt. Along with the usual, there was the position of the supreme qadi.

Initially, in order to make the office of judge more independent, they were not supposed to be paid. During the reign of the Abbasids, positions became paid and even sold. This was all the more possible because Muslim jurists and jurists had a very negative attitude towards holding the position of a judge: it was considered unworthy, and decency demanded that it be abandoned.

The legal powers of the qadi were formed gradually. So, only from the tenth century. the right of judges to decide cases on inheritances was consolidated. Their duties also included the supervision of prisons, the decision of matters of deanery. The qadi had its own judicial staff of 4-5 ministers and scribes, including judges who sorted out the smallest disputes.

From the 9th century one of the most peculiar and unparalleled institutions of Muslim legal proceedings, “permanent witnesses”, was formed.

Since the law required that testimony be accepted only from persons of good repute, the qadi kept a list of such witnesses, constantly inviting them to court sessions. They testified acts, four participated in the analysis of cases. Sometimes such "witnesses" were commissioned to independently sort out minor cases on behalf of the judge.

Judges are largely hereditary. In many respects, it is also because the legal proceedings, based on the Koran and the Sunnah, retained the character of customary law and were guided by the tradition of judicial practice.

In addition to the spiritual court of the qadi, the caliphate also had secular courts. They included “every matter that the qadi was unable to resolve and which the one with more power should have resolved.” The secular court was more likely to receive criminal and police cases. The vizier appointed secular judges. In a secular court, it was possible to appeal against the decision of the qadi court. The court court was considered the highest instance of secular justice (although there was no actual strict subordination). Often it was created by the viziers who managed the palace. From the second half of the ninth century Caliphs themselves did not participate in the resolution of specific cases.

The secular court was less limited by the Koran and tradition. Local law prevailed in it, such punishments were applied that were prohibited in the qadi courts (for example, corporal). But here world deals were possible, witnesses were sworn in. The discretion of the court was largely free.

Simultaneously with the emergence of the Caliphate, its law, Sharia, was formed (Sharia - from Arabic - “the proper way”). Law was originally formed as the most important part of religion. Its main sources were:

The Quran is the main holy book of Islam. The prescriptions contained in it are in the nature of religious and moral guidelines.

Sunnah - collections of legends (hadith) about the actions and sayings of Muhammad, set out by his companions. For the most part, they contain prescriptions regarding family-inheritance and judicial law. Subsequently, the attitude towards this source in the Muslim world became ambiguous: not all hadiths are recognized by Shinty Muslims.

Ijma - decisions made by authoritative Muslim jurists on issues not covered in the above sources. Subsequently, these decisions were recognized by prominent jurists and theologians. It is believed that Muhammad, under these conditions, encouraged the free discretion of judges (ijtihad). According to legend,

A fatwa is a written opinion of the highest religious authorities on the decisions of secular authorities regarding certain issues of public life.

In the future, as Islam spread, other sources of law appeared - decrees and orders of the caliphs, local customs that did not contradict Islam, and some others. Accordingly, law became differentiated, and legal norms were determined in a given region by the direction of Islam that dominated there, as well as by the level of development of social relations. But at the same time, there has been a tendency towards a theoretical generalization of legal norms.

Islamic law initially proceeded from the fact that the activities of people are ultimately determined by "divine revelation", but this does not exclude the possibility of a person to choose and find the proper direction of his actions. Therefore, the refusal of proper behavior is considered not only as a legal violation, but also as a religious sin, entailing the highest retribution. The actions of a Muslim differ as follows:

1) strictly obligatory, 2) desirable, 3) permitted, 4) undesirable, but not punishable, 5) prohibited and severely punished.

This differentiation is especially important in relation to the main values ​​protected by Islam: religion, life, reason, procreation and property. According to the essence of the encroachment on them, as well as the nature of the punishment, all crimes are basically reduced to three types:

1) crimes directed against the foundations of religion and the state, for which precisely defined punishments follow - hadd;

2) crimes against individuals, for which certain sanctions are also assigned;

3) offenses, including crimes, the punishment for which is not strictly established. The right to choose punishment (tazir) is given to the court.

Hadd crimes were primarily apostasy and blasphemy, punishable by death. However, according to many prominent jurists, the repentance of an apostate allows for his forgiveness. All speeches against state power were also punishable by death.

Among crimes against individuals, the right most attention devoted to premeditated murder, and provided for an alternative punishment. According to legend, Muhammad offered the relatives of the slain to choose one of three: the death penalty, forgiveness of the murderer, accepting a ransom for blood (diya). The amount of the ransom was usually determined as the cost of 100 camels. The subjective side of the crime was taken into account. The person who committed the manslaughter paid a ransom and carried a religious atonement (kaffara).

Infliction of bodily harm was mainly punished by talion.

Theft as an encroachment on one of the main values ​​protected by religion was prosecuted very severely: the hand of the condemned thief was cut off. There were other restrictions as well.

In the law of the time of the Caliphate, the norms regulating property relations also received some development. The formation of basic legal land statuses was initiated. This:

1) hijaz – the lands where, according to legend, Muhammad lived and for which a special legal regime was established: tithes were collected from the Muslims living on these lands;

2) waqf – land donated to mosques, Muslim schools and other organizations for religious and charitable purposes. They were exempt from taxes and were considered inalienable. Waqf could also consist of other immovable and movable property;

3) mulk – lands that, by the nature of the powers of their owners, could be identified with private property;

4) ikta – temporary grants of land together with the peasant population living on it for service. The owner of such land had the right to taxes from the peasants. The contract law has not yet developed in its full scope, but in the approach to resolving a number of specific disputes, some important principles were determined - the prohibition to turn debtors into slavery, the condemnation of usury.

In the Umayyad Caliphate, which had contact with the Roman cultural heritage and the works of Greek authors, a stratum of people formed who became interested in theology and jurisprudence independently and without connection with the ruling class and its apparatus. Lawyers of such a broad profile could be judges in the service of individual rulers, but they could also be very critical ministers, believing and proving that rulers deviate from the requirements of "revealed law."

The Abbasids also tried to reckon with the opinions of jurists. Lawyers' decisions were not put into practice immediately and directly, but only insofar as the rulers themselves chose them as a doctrinal basis for their political or judicial-punitive actions. In practice, jurists discussed and summarized much more than practical jurisprudence in modern sense: they were interested in and recognized as authoritative advisers in the field of rituals and rituals, etiquette and moral precepts. The divinely revealed right extended, therefore, to the whole way of life and became, by virtue of this, "a divinely revealed way of life."

Under the Abbasids and their governors, mosques were transformed from the center of state life, including judicial activities, into liturgical institutions. At such institutions, elementary schools for teaching the alphabet and the Koran arose. The one who knew the verses of the Koran by heart was considered to have completed his studies. Some of the primary schools, apparently, were not only spiritual, but also secular (children of other faiths studied, a ban on this was introduced in the middle of the 9th century). Men of science and philosophers first grouped in mosques and studied with individual inquisitive people here and elsewhere. Such was the original activity of the founders of the four main sects (madhhabs) who lived under the first Abbasids, into which the orthodox Muslim world was divided: Abu Hanifa in Kufa (Syria), Malik ibn Anas in Medina, Shafi’i in Mecca (later in Cairo) and Ahmed ibn Hanbal in Baghdad. Theological talk was at the same time jurisprudence.

Theological faculties appeared at some mosques. Such was, for example, the faculty, and then the university at the al-Azhar mosque in Cairo, which grew out of the school at the mosque built in the 10th century. Schools with cells for students and auditoriums for lectures appeared at some mosques. (madrasah - place of learning, from "daras" - to study). These schools are first mentioned in the extreme east of the Muslim world, in Turkestan, where they appeared, apparently, under the influence of Buddhist monastic practice (vihara). Then they appear in Baghdad, Cairo, Morocco. The oldest inscription in the Bukhara madrasah (XV century) contains a saying that sounded in dissonance with the subsequent and partly modern practice of schooling: "The pursuit of knowledge is the duty of every Muslim man and Muslim woman."

Despite the cessation of conquests, the period of the IX-X centuries. became the time of a kind of Muslim renaissance, the flowering of culture, theology, and jurisprudence.

By the end of the ninth century centrifugal tendencies were outlined in the vast empire. They relied on the feudal aspirations of individual rulers, especially those who established their power locally without being recognized by the caliphs. In the middle of the tenth century the strengthened rulers of Iran seized power in the central regions of the empire, leaving the caliphs with nominal spiritual power. The deprivation of the caliphs of political power caused a natural process of disintegration of a vast state, which did not have any internal strength and unity.

The split of the Caliphate into separate independent states became a matter of time.

In the XI century. in Iran and Asia Minor, independent sultanates arose, nominally recognizing the suzerainty of the caliphs. In the XIII century. in Central Asia, a vast state of Muslim rulers, the Khorezmshahs, formed, uniting most of the former possessions of the caliphate. Even earlier, the Caliphate of Cordoba in Spain, the sultanates of North Africa separated themselves into independent states. The caliph retained his power over parts of Mesopotamia and Arabia. The final defeat of the Asian possessions of the former Arab empire occurred during the Mongol conquest. The Caliphate of Baghdad was abolished. The dynasty and power of the Arab caliphs were still preserved for several centuries in the state of the Mamluk rulers in Egypt, which became a temporarily sacred center of Muslims, until in the 16th century. he did not fall under the rule of a new powerful political force emerging in the Middle East - the Ottoman Empire,

The Arab Empire - both as a whole and the individual states that made it up - was in pure form theocracy, i.e.

The organization of power and management of statehood, all the imperious and administrative (and even social and legal) principles of which were determined by the religion of Islam and the indisputable authority of the spiritual head. At the beginning of the Caliphate, this head was the Prophet Muhammad. He equally belonged to both secular and spiritual-religious power. The supremacy of the ruler was also based on the sovereign ownership of the state on the land: more precisely, the lands belonged only to Allah, on whose behalf the earthly rulers disposed of them.

Conclusion

The main reasons for the military successes of the Arabs must be recognized as religious fanaticism, as well as the depletion of feudal Byzantium and Iran. As a result of the conquests, a huge feudal state was created, which was at first quite centralized. Further feudalization led to the collapse of this state. The first step in this direction was taken in economically and socially developed lands.

The decomposition of tribal relations has gone especially far in Hijas (a region of the Red Sea coast). Here, semi-sedentary tribes were concentrated around the oases, engaged not only in cattle breeding, but also in agriculture. In this area there were trade and craft cities of Mecca, Yathrib, through which a busy caravan route ran from south to north. Rich merchants-usurers dominated the cities. Having isolated themselves into a privileged group, they nevertheless did not break family ties with certain tribes and their nobility. These areas were inhabited by large numbers of destitute Bedouins. Centuries-old ties, bonds and traditions of mutual assistance that connected fellow tribesmen collapsed. disaster for ordinary people there was increased inter-tribal strife. Constant mutual military raids were accompanied by murders, theft of people and livestock.

Thus, in an atmosphere of deep socio-economic crisis, a new (class) society was born. And as was the case with other peoples, the ideology of the social movement, which objectively advocated a new system, acquired a religious form.

Simultaneously with the emergence of the Caliphate, its law, Sharia, was formed (Sharia - from Arabic - “the proper way”). Law was originally formed as the most important part of religion.

A feature of the Arab feudal society was that the class structure did not arise in the form that it was in European countries. The rights and privileges of the feudal lords were not regulated in Islamic law. Only the descendants of Muhammad - sheikhs and seids stood out from the general mass of Muslims and enjoyed some privileges.

Another feature of the Arab feudal society was the difference in rights between Muslims and non-Muslims.

Caliphate - feudal-theocratic despotism. At the head of the state was the caliph, the successor - the "viceroy" of Allah on earth. Caliphs concentrated spiritual and secular power in their hands.

The source of the caliph's power was: the election by the people and the reserved order of the caliph. Over time, the second method became dominant. The successor could be a member of the caliph's family or a man from the family of Muhammad, who has no bodily defects and has reached the age of majority. The power of the caliph is terminated by death, renunciation of power, physical and moral impossibility to perform his functions.

Literature

1. Tischik B.Y. The history of the state and the rights of the lands of the ancient world. – Lviv, Exhibition Center “SPOLOM”, 1999

2. Reader on the history of the state and the law of foreign countries. Ed. Z.M. Chernilovsky. - M., 1984

3. Fedorov K.P. History of the state and the rights of foreign countries. - Kiev, Vishcha school, 1994

4. Shevchenko O.O. History of the state and the rights of foreign countries. - Kiev "Venturi", 1994

Features of the formation and development of Islamic law: One of the largest phenomena in medieval civilization in the East was Islamic law (Sharia). This legal system, which eventually acquired world significance, arose and took shape within the framework of the Arab Caliphate. The process of its development was closely connected with the evolution of the Arab statehood from a small patriarchal-religious community at the beginning of the 7th century. (under the Prophet Muhammad) to one of the largest empires of the 8th-10th centuries. under the Umayyad and Abbasid dynasties.

After the fall of the Arab Caliphate, Muslim law not only did not lose its former significance, but acquired, as it were, a "second life" (like Roman law in medieval Europe) and became the current law in a number of medieval countries in Asia and Africa that adopted Islam to one degree or another. (Egypt, India, Ottoman Empire, etc.).

Islamic law absorbed many elements of the previous legal cultures of the East, in particular, legal customs and traditions that were in force in pre-Islamic Arabia and in the territories conquered by the Arabs. Thus, under the Umayyads, the law of Sasanian Iran, Byzantium, and also partially Roman law continued to be applied for some time. All these sources had some, although outwardly and hardly noticeable influence on the formation of Sharia, thus symbolizing the connection between Eastern and Western civilizations. But it was not they who ultimately determined the uniqueness and originality of Shariah as an independent and original legal system. An exceptionally important role in the development of Sharia was played by the activities of Muhammad and the first four so-called righteous caliphs, under whom the holy books of Muslims - the Koran and the Sunnah - were compiled by interpreting the commandments, sayings and actions of the prophet.

From the very beginning, Sharia was formed and developed (at least in the first two centuries) as a strictly confessional law. It was organically merged with the theology of Islam, permeated with its religious and ethical ideas. According to Islam, legal institutions are seen as part of a single divine order and law that governs the world. Especially at first, Sharia as a whole and its own doctrinal-normative part (fiqh) absorbed not only legal provisions, but also religious dogma and morality. Such fusion (syncretism, indivisibility) of the Sharia found its specific expression in the fact that its norms (rules, prescriptions), on the one hand, regulated social ("human") relations, and on the other hand, determined the relations of Muslims with Allah (ibadat). The introduction of divine conduct and religious and moral principles into Sharia was reflected in the originality of legal understanding, as well as in the assessment of lawful and unlawful behavior. Thus, the close connection of law with the theology of Islam found its expression in the establishment in the Sharia of five types of Muslim actions, which were given equal legal and moral-religious meaning: mandatory, recommended, permissible, reprehensible, but not entailing the application of punishment, prohibited and subject to punishment. The recognition of divine predestination in the Sharia inevitably gave rise to a greater significance of the question of the free will of a Muslim and its limits. The religious-philosophical schools that clashed on this issue took a different position. Thus, one of these schools (the Jabarites) generally denied the free will of man.

Sharia, especially in the early stages of its development, is characterized by attention not to the rights of a Muslim, but to his duties towards Allah. The norms containing such duties are quite widely represented in the Sharia, and they determined the whole life of a faithful Muslim (daily prayer, observance of fasting and burial rules, etc.). It is no coincidence that the peculiarity of the norms that make up Sharia is that they apply only to Muslims and in relations between Muslims. Early Islam and Sharia were characterized by establishments (norms) dating back to the communal system, containing elements of collectivism, mercy, care for the crippled and other disadvantaged. But in the Sharia, ideas about the impotence of a person before God, about the resulting contemplation and humility, were also reflected. The Qur'an especially emphasized the need for a Muslim to show patience and humility: "Be patient, for Allah is with the patient" (8.48). In the same way, the duty of a Muslim to obey the caliph and state authority was fixed in the Sharia: "Obey Allah and obey the messenger and those in power among you" (4.62).

The mystical-religious shell of Sharia determined the great originality of its own legal constructions and concepts, and hindered the formation of rationalistic principles and a logically justified internal system in it, as was the case in Roman law. However, by the 8th-9th centuries, when Sharia outgrows the framework of the patriarchal-communal and tribal perception of the world and faces feudalizing social relations, it, thanks to the active work of Muslim theologians and jurists, is increasingly moving from divine legal understanding to rationalistic, from casual methods derivation of legal norms - to logical-systemic ones. Muslim legal scholars, without breaking with the fundamental and traditional principles of Sharia, have developed a whole series of new legal doctrines and norms (fiqh), which are purely legal in nature. Of these, Abu Hanifa, who received the title of "great teacher" (died in 767), Malik ibn Anas (died in 795), Mohammed ibn Idris Shafii (died in 820), Ahmed ibn Hanbal (died 855).

The doctrinal development of Islamic law by legal scholars, introducing a logical-rationalistic principle into it and having as a result the creation of a huge mass of new legal norms (complication of fiqh), did not mean a break with classical Islam, expressed in the Koran and in the Sunnah. On the contrary, it was presumed that such new norms and doctrines are true, coming from orthodox Islam, unless they are perverted in the very judicial practice of muftis and mujtahids. Thus, the Sharia formed the notion that Islam provides normative guidelines for all occasions and that correct adherence to it eliminates the possibility of an internal contradiction between legal norms, even if outwardly they exclude each other.

One of the characteristic features of medieval Muslim law (especially in the first centuries) was its relative integrity. Along with the idea of ​​a single god - Allah - the idea of ​​​​a single legal order, which has a universal character, was established. Moreover, having originated initially on the Arabian Peninsula, Islamic law, as the boundaries of the caliphate expanded, extended its effect to new territories.

But it brought to the fore not the territorial, but the confessional principle. A Muslim, being in any other country (for example, for trading purposes), had to observe Sharia, remain faithful to Islam. Gradually, with the spread of Islam and its transformation into one of the main religions of the world, Sharia became a kind of global system of law. This markedly distinguished it from the law of Western European medieval states, which was characterized by such features as particularism, limited scope, internal inconsistency, etc.

As confessional law, Sharia differed from canon law in European countries in that it regulated not strictly defined spheres of public and church life, but acted as an all-encompassing and comprehensive regulatory system, established in a number of countries in Asia and Africa. Over time, Sharia norms went far beyond the Near and Middle East, extended their effect to Central Asia and part of the Transcaucasus, to North, and also partially to East and West Africa, to a number of countries in Southeast Asia. However, such a rapid and widespread dissemination of Islam and Sharia has also led to an increasing manifestation in it of local features and differences in the interpretation of individual legal institutions and the resolution of specific legal disputes. So, over time, with the approval of the two main directions in Islam, a split occurred in the Sharia, where, along with the orthodox direction (Sunnism), another direction arose - Shiism, which up to the present time has a dominant position in Iran, as well as partially in Lebanon and Yemen. The confrontation between these areas has found its consolidation in the legal norms relating to various aspects of the life of the state and society. Thus, Shiism provides for a legal procedure for the transfer of state power by inheritance, the concentration of secular and religious authority in the hands of clerics - imams, who were considered infallible. Moreover, the Shiites recognized only those legends about the Prophet Muhammad, including those that were legal indications for them, which went back to the last righteous caliph - Ali.

Gradually, the supporters of the orthodox direction of Sharia (Sunnis) grouped into four main sects (madhhabs), which were essentially independent legal schools associated with the names of the four most prominent Muslim jurists listed above: Hanifites, Malikis, Shafiites, Hanbalites. Of these, the most widespread Hanafi madhhab (from Abu Hanifa) had its followers primarily in such countries as Egypt, Turkey, India, and also in Russia.

The activities of the main madhhab schools contributed to the further development of Islamic law, the rational understanding of new phenomena in social life, the development of a number of abstract rules, and the rejection of some clearly outdated (“survival norms”). But the contradictions and differences between these schools on the most important issues of law gradually deepened.

A number of independent schools also arose on the basis of Shiism: Ismaili, Jafarite, Zaidi, etc. Thus, by the end of the Middle Ages, Sharia, the doctrinal and normative basis of which became more complicated and underwent significant changes, became an extremely complex and unusual legal phenomenon.

Islamic Law Sources: The most important source of Sharia is the Koran - the holy book of Muslims, consisting of parables, prayers and sermons attributed to the Prophet Muhammad. Researchers find provisions in the Koran that are borrowed from earlier legal monuments of the East and from the customs of pre-Islamic Arabia. The compilation of the Quran spanned several decades. The canonization of its content and the compilation of the final edition took place under the caliph Omar (644-656). In the Quran itself, its legal significance is defined as follows: "And so we sent it down as an Arabic judicial code." The Qur'an also instructs the Arabs to abandon the "customs of the fathers" in favor of the rules established by Islam (2,165-166).

The Qur'an consists of 114 chapters (suras) divided into 6219 verses (verses). Most of these verses are mythological in nature, and only about 500 verses contain instructions relating to the rules of conduct for Muslims. At the same time, no more than 80 of them can be considered as proper legal (mostly rules related to marriage and family), the rest relate to religious ritual and duties.

Most of the provisions of the Qur'an are casual in nature and represent specific interpretations given by the prophet in connection with particular cases. But many of the establishments have a very indefinite form and can take on different meanings depending on what content is invested in them. In subsequent judicial theological practice and in legal doctrine, as a result of a fairly free interpretation by different madhhabs, they were expressed in contradictory, and often in mutually exclusive legal prescriptions.

Another authoritative and obligatory source of law for all Muslims was the Sunnah (" sacred tradition"), consisting of numerous stories (hadiths) about the judgments and actions of Muhammad himself. In the hadiths one can also find various legal layers reflecting the development of social relations in Arab society. The final editing of the hadiths was carried out in the 9th century, when 6 orthodox collections of sunnah were compiled , the most famous of which was the collection of Bukhari (died in 870). Norms of marriage and inheritance, evidence and judicial law, rules on slaves, etc. are also derived from the Sunnah. Despite their processing, the hadiths of the Sunnah contained many contradictory positions, and the choice of the most "authentic" of them was entirely at the discretion of legal theologians and judges. It was believed that only those hadiths that were retold by the companions of Muhammad were valid, and, unlike the Sunnis, the Shiites recognized as valid only those hadiths that ascended to Caliph Ali and his supporters.

The third place in the hierarchy of sources of Islamic law was occupied by ijma, which was seen as "general agreement of the Muslim community". Along with the Koran and the Sunnah, she belonged to the group of authoritative sources of Sharia. In practice, ijma consisted of concurring opinions on religious and legal issues that were expressed by the companions of Muhammad (who numbered more than 100 people) or later by the most influential Muslim legal theologians (imams, muftis, mujtahids). Ijma developed both in the form of interpretations of the text of the Koran or the Sunnah, and through the formation of new norms that were no longer associated with Muhammad. They provided for independent rules of conduct and became obligatory due to the unanimous support of muftis or mujtahids. This way of developing the norms of Islamic law was called "ijtihad". The legitimacy of ijma as one of the main sources of sharia was derived from Muhammad's instruction: "If you yourself do not know, ask those who do."

The great role of ijma in the development of Sharia was that it allowed the ruling religious elite of the Arab Caliphate to create new legal norms adapted to the changing conditions of feudal society, taking into account the specifics of the conquered countries. Ijma, as a source of law supplementing the Sharia, adjoined and fatwa - decisions and opinions of individual muftis on legal issues. In the VIII-IX centuries. In connection with the widespread use of the ijtihad method, Islamic law was actively developed in a doctrinal way in the works of the founders of the main legal schools mentioned above, and later in the works of their leading followers and students. In the tenth century a number of authoritative legal theologians carried out work to systematize the extensive legal material accumulated by that time. From the 11th century In connection with the aggravated contradictions between the main currents in Islam and different legal schools (madhhabs), Muslim law did not actually exist as a single system. Internal differences in it have become significant.

One of the most controversial sources of Islamic law, which caused sharp disagreements between different directions, was kiyas - solving legal cases by analogy. According to Qiyas, a rule established in the Qur'an, Sunnah or Ijma can be applied to a case that is not expressly provided for in these sources of law. Kiyas not only made it possible to quickly settle new public relations, but also contributed to the liberation of Sharia in a number of ways from the theological plaque. But in the hands of Muslim judges, qiyas often became an instrument of outright arbitrariness. This method was most widely substantiated by Abu Hanifa and his followers - Hanifites. The most sharply opposed qiyas were the Hanbalis and especially the Shiites, who did not recognize it as a source of law at all.

As an additional source of law, Sharia also allowed local customs that were not directly included in Muslim law itself during its formation, but did not directly contradict its principles and norms. At the same time, the legal customs that had developed in the Arab society itself (urf), as well as among numerous peoples conquered as a result of the Arab conquests or later subjected to the influence of Muslim law (adat), in particular among the peoples inhabiting Russia, were recognized.

Finally, the source of Islamic law derived from Sharia was the decrees and orders of the caliphs - firmans. Subsequently, in other Muslim states, with the development of legislative activity, laws began to be considered and play an ever-increasing role as a source of law - eve. Firmans and kanuns were also not supposed to contradict the principles of Sharia and supplemented it, first of all, with norms regulating the activities of state bodies and regulating the administrative and legal relations of state power with the population.

Legal regulation of property and family relations: Although the Sharia did not know, as such, the division of law into separate branches, civil law relations, in particular the right to property, contract and tort law, received noticeable development in it.

Particular attention in the Sharia was paid to the "right of personal status." In the Arab Caliphate, as in many other states of the medieval East, there was no special estate system with its inherent hierarchy of unequal estate-corporate groups. According to Muslim law, the legal position of a person was determined by his religion. Only Muslims had full personal status according to Sharia. Persons who professed Christianity or Judaism (the so-called dhimmis) were in a humble position and were required to pay a heavy state tax (jizya). Sharia norms were applied to them only in those cases when they made deals with Muslims or committed crimes. The development of social relations had an impact on the position of slaves. They were not recognized as subjects of law, but could, with the consent of their owners, conduct trade operations and acquire property. The release of Muslim slaves into the wild was seen as a charitable deed. characteristic feature The legal status of the individual according to Sharia was also the inequality of men and women.

Because according to religious beliefs Sharia, only Allah was the subject of law, then the Muslim was considered as the bearer of duties established by God. Only to the extent that he observed his religious duty, following the dictates of Islam, did he receive the right to the claims provided for by the Sharia and other legal possibilities. Therefore, Muslim jurists developed not so much the question of legal capacity as of the legal capacity of a person, that is, his ability to participate in transactions and other legal acts. Civil capacity was considered as a necessary condition for the acquisition of property rights. Legal capacity was granted in full to persons who had reached the age of majority and were of sound mind. The right to establish the fact of reaching the age of majority in each individual case was exercised by the judge, who decided this issue at his own discretion. The concept of limited legal capacity for minors, feeble-minded people, persons who were in a state of intoxication, etc. was also known.

An important place in the Muslim legal doctrine was occupied by the norms regulating property relations. First of all, the concept of property as an object of property rights was fixed in the legal doctrine. A special category was made up of things that could not or should not have been owned by a Muslim. These are air, sea, desert, mosques, waterways, etc. The property of Muslims was also not recognized for the so-called "unclean things" - wine, pork, books that contradicted the provisions of Islam, etc. Often, during the Arab conquests, these things were destroyed, although the issue of the right to destroy property belonging to infidels was controversial and was interpreted differently in different madhhabs. Islamic law was also aware of the division of things into movable and immovable, replaceable and irreplaceable, characterized by individual characteristics and not having them, etc. Muslim jurists paid much attention to the classification of land property. State property, lands owned by private individuals, abandoned lands, lands unsuitable for cultivation, etc. were allocated to special groups.

The Shariah defined in detail the ways in which the right to property arises, and on some of them, jurists, representatives of different madhhabs, expressed conflicting opinions. The aggressive campaigns of the Arabs sharply raised the question of the legitimacy of military seizures, of the very order of the emergence of ownership of the seized property. The conquered lands, as a general rule, were considered as the property of the state and were placed at the disposal of the caliphs and emirs. The legal status of other property obtained from the enemy was determined primarily depending on whether it was obtained by force or non-violence. The property seized by force was divided into several parts, the size of which was determined differently in individual madhhabs. One of them passed into the ownership of the miner, the second was to be transferred to the state, the third - to mosques, etc. Shariah also knew such ways of acquiring property rights as inheritance, contract, finding a thing. In the latter case, it was peculiar that the owner of the land, who found someone else's thing on his plot, became its owner.

The structure of property relations that had developed in Muslim states was carefully regulated and protected by Sharia norms. The right of private property was attributed a divine origin, it was regarded as permanent and unlimited, and the owner had absolute freedom to dispose of his property. The inviolability of private property was derived directly from the Koran, which said: "And do not stretch your eyes on what we endowed some couples" (20, 31).

A special legal regime had the lands that made up the original territory of the Muslim community (Mecca with the adjacent territory), which were called hijaz. Only Muslims could settle on these lands, it was impossible to cut trees, hunt, etc. here. The population of the conquered lands, as a rule, lost their property rights, which were transferred to the state. Landowners, on the other hand, were now regarded as tenants and were obliged to pay a heavy tax. (kharaj).

Private feudal property in the Arab Caliphate (mulk) was of subordinate importance in comparison with state property and communal land use and was not widely used. Unlike feudal property in European countries, it did not have a hierarchical structure and was not bound by the conditions of service. With the growth of the state land fund and the development of feudal relations, conditional forms of land holdings also became widespread. Part of the occupied lands began to be provided to individual representatives of the feudal elite for military or public service (ikta). The owner of such land (iktadar) received the right to collect taxes for his own benefit from the subject population. Since iqta eventually began to be inherited, in its actual position it approached the lands secured by the right of ownership. According to the original interpretation of the Qur'an, fresh water, like air, was considered common property. But gradually, wells, ponds and small lakes became the property of large landowners. Only significant rivers and lakes were still included in the common system of communal and state property, which was determined by the need for joint irrigation work carried out under the control of officials.

A kind of Sharia institution associated with real rights was wakuf, representing property (usually immovable) transferred by the owner for any religious or charitable purposes (mosques, madrasas, etc.). The person who established the waqf lost the ownership of this property, but retained the right to act as the administrator of the waqf and reserve a certain income from the waqf for himself and his heirs. The property constituting the waqf could not be the subject of sale and purchase, pledge, etc. Waqf lands, however, could be leased or exchanged for equivalent land property. This institution was widely used by the wealthy elite in order to evade paying high taxes, since the property constituting the waqf was exempt from state taxation.

Sharia, unlike Roman law, did not formulate the general concept of obligation, but the practical issues of contract law, which mediated trade and money circulation, received a comprehensive development. Obligations were divided into reimbursable and gratuitous, bilateral and unilateral, urgent and indefinite. Characteristic of the Muslim society was the spread of specific unilateral obligations - vows.

The Sharia agreement was considered as a connection arising from the mutual agreement of the parties, which, however, in conditions of property inequality, was purely formal. The terms of the contract could be expressed in any form: in a document, in an informal letter, orally. The contracts that were signed were considered inviolable. The duty to keep "one's own agreements" was regarded in the Qur'an (23:8) as sacred. Contracts concluded for immoral purposes with the use of "unclean" or items withdrawn from circulation were considered invalid.

Muslim jurists did not set strict conditions regarding the form of expression of the will of the parties in the contract. The consent of the parties to enter into an agreement, the terms of the agreement could be expressed in a document, orally and in the form of an informal letter. Sharia regulates in detail various types of contracts: purchase and sale, loan, donation, hire, loan, storage, partnership, union, etc. In connection with the wide development of trade, one of the most developed contracts was the purchase and sale. The legitimacy of trade "by mutual agreement" was already mentioned in the Koran (4.33).

A contract of sale was allowed only in relation to real-life things, and only in the Hanafi madhhab was the sale of things that should be produced in the future recognized. In the event that hidden defects were discovered in the purchased items (illness in a slave, animal, etc.), the buyer could terminate the contract.

Sharia contained provisions that formally condemned usury. Even in the Qur'an it was said that "Allah allowed trade and forbade growth" (2,276). But in practice, this prohibition was often violated. It was forbidden to enslave the debtor for non-payment of debts, but he could be forced to work off his debt to the creditor. This form of settlement with the creditor corresponded to the development of feudal forms of exploitation.

Much attention in Muslim law was paid to the relations of property rent, primarily the lease of land. Several types of hiring were known, with paramount attention being paid to the issues of the amount and procedure for collecting rent in favor of the owner. Agreements of union and partnership were widely used in Arab society. This legal form was used for joint irrigation of the land, equipment of trade caravans, etc.

The Muslim religion and Sharia consider celibacy as an undesirable state, and marriage as religious obligation Muslim. But in fact, the marriage contract often acted as a kind of trade deal. Formally, the consent of the parties, including the bride, was required for marriage (only the Shafiites did not consider such consent mandatory). But since it was believed that the parents had the right to express the will of the bride, the marriage contract often turned into a disguised form of selling the girl. In fact, the father controlled the marital fate of his daughters, while trying to get the highest possible ransom. Since, according to tradition, Muhammad married Aisha when she was nine years old, this age was recognized as sufficient for women to marry. The Shiites allowed temporary marriage, concluded for a certain period. According to Sharia, a Muslim had no right to marry unbelievers and apostates from Islam. Marriages entered into in violation of these conditions were annulled. But a Muslim was allowed to marry women of a different religion, since it was assumed that the husband would convert his wife to the Muslim faith. It was forbidden for a Muslim woman to marry a non-Muslim.

The Koran recognized the right of a Muslim to have up to four wives at the same time. In addition, it was possible to have concubines from among the slaves. But the husband was obliged to provide each wife with property, housing and clothes that corresponded to his position. In practice, only representatives of the top of feudal society could support several wives, and even more so special harems with slaves.

The Muslim religion substantiated the humiliated and dependent position of a woman in the family. The superiority of the husband was justified by the following indication in the Qur'an: "Husbands are superior to wives because God gave the first advantage over the second, and because they spend on them out of their property" (4.38).

The wife did not participate in household expenses, which were assigned to her husband, but was obliged to manage the household and raise children. Her right to participate independently in the property turnover was extremely limited. The Malikis, for example, believed that a wife, without the consent of her husband, could dispose of no more than a third of the property.

The Qur'an allowed the husband to apply various punishments to his wives, including corporal ones: "And those whose disobedience you are afraid of, exhort, and leave them on their beds, and strike them" (4.38).

In Islamic law, the grounds for divorce and its procedure were determined in detail. Any of the four marriages could be dissolved, the number of subsequent marriages and divorces was not regulated. Shariah knew several types of divorces, differing both in the order itself and in its legal consequences. For example, a temporary divorce was possible, providing for a kind of probationary period. Although the reasons for divorce were precisely defined (apostasy from Islam, etc.), a husband could divorce his wife without explaining the reasons in a simplified form (talaq), saying one of the established phrases: "you are excommunicated" or "reunite with the clan" . In the event of a divorce, the husband had to provide his wife with the necessary property "according to custom." A divorced woman stayed in the house for three months ex-husband to determine if she is pregnant. In the event of the birth of a child, he had to be left in the father's house. The wife could demand a divorce only through the courts, referring only to strictly defined grounds: the husband had physical disabilities, did not fulfill marital duties, treated his wife cruelly or did not allocate funds for her maintenance.

Inheritance law was extremely complex and confusing, which, moreover, had significant differences in different legal schools. Two orders of inheritance were recognized: by will and by law. A will could not be drawn up in favor of legal heirs, affect more than a third of the testator's property, its preparation required the presence of two witnesses. Particularly developed was the order of succession by law. From the property of the deceased, first of all, the expenses associated with his burial were covered, then all his debts were paid. A feature of Sharia was that only the property rights of the deceased were subject to inheritance, and not duties that could not be transferred to heirs.

The remaining property passed to the legal heirs of the deceased; they were divided into several categories, within which their own order of calling to the inheritance was established. So, first of all, the children of the deceased received the inheritance, then his brothers, uncles, etc. The hereditary share of women was half that of men.

Apostates, divorced spouses, persons who, even if by unintentional actions, caused the death of the testator were not entitled to receive the inheritance. Only the Malikites recognized the right to the inheritance of the murderer, if he was guided by just motives.

Crimes and punishments: The norms of criminal law were the least developed part of Sharia. They were archaic and reflected a relatively low level of legal technique. There was no general concept of a crime, such institutions as attempt, complicity, mitigating and aggravating circumstances, etc. were poorly developed.

Even medieval Muslim jurists divided all crimes into three groups. The first of these were crimes that, according to Muslim doctrine, were traced back to the instructions of Muhammad himself. They were interpreted as encroachments on the "rights of Allah" and did not allow forgiveness. This included primarily apostasy from Islam, punishable by death. The most daring crimes against the order of government were punished just as severely - rebellion and resistance to state authorities. The same group of crimes, declared a serious religious sin, included theft, drinking, adultery, and false accusation of adultery.

The second group of crimes consisted of unlawful actions, which were considered as infringements not on the rights of the entire Muslim community, but on the rights of individuals. The norms governing them went back to the customs of the tribal system, retained traces of the direct reprisal of the victim with the offender. Thus, a deliberate murder or a mortal wound entailed a blood feud on the part of the relatives of the murdered. Sharia, however, already provided for the possibility of replacing blood feuds with a ransom if the relatives of the slain person forgave the killer. A ransom was set for manslaughter, which was accompanied by a two-month fast and the release of a Muslim slave. For other crimes of this group, in particular for bodily harm, liability also arose on the principle of retribution, i.e. talion. This principle is clearly enshrined in the Qur'an, where it is prescribed: "a soul for a soul, and an eye for an eye, and a nose for a nose, and an ear for an ear, and a tooth for a tooth, and wounds for vengeance" (5, 49) .

Finally, the third group of crimes consisted of actions that were not considered punishable during the formation of the Caliphate, and therefore were not mentioned in the main sources of Sharia. With the development of legal doctrine and the desire of the possessing elite to strengthen the existing public order such actions as non-payment of zakat, non-observance of fasting, minor bodily harm, insults, hooliganism, underweight and fraud, bribery, embezzlement of public funds, gambling, etc. begin to be considered as criminal offenses and punished in court. The measure of punishment in such cases depended on the opinion expressed by the mujtahids and on the discretion of individual judges.

Punishments under Islamic law reflected both archaic and pre-state methods of retribution, as well as well-developed measures of targeted criminal law repression.

The crimes of the first and second groups entailed strictly fixed and severe punishments (hadd and qisas). Punishments for crimes belonging to the third group (tazir) were distinguished by great diversity and flexibility (from 4 to 11 types of such punishments), but also had a pronounced punitive character. As noted above, Sharia allowed and thereby legalized blood feud (in a somewhat limited size compared to the pre-Islamic period), talion, as well as ransom in things or money (up to 100 camels or 1 thousand dinars of gold) as compensation to the victim or his relatives if they waived their right to blood feud.

The Sharia provided for the cruel and frightening punishments typical of the Middle Ages. Thus, the death penalty, imposed on a number of crimes, was usually carried out publicly (by hanging or quartering), and then the body of the executed was exposed to general reproach. Such types of executions as drowning and burying alive were also used. Self-mutilating and corporal punishments were also widely used - cutting off fingers, hands and feet, scourging, stoning, etc. Imprisonment in the Arab Caliphate was usually used to keep criminals pending trial, but gradually began to be used as a measure of punishment, and in some cases life imprisonment was prescribed. Deprivation of liberty was also expressed in home confinement or placement in a mosque. Islamic law also knew property sanctions (confiscations, fines, etc.) and disgraceful punishments - shaving the beard, deprivation of the right to wear a turban, public condemnation, etc., as well as exile and expulsion (for petty crimes).

Trial: The process under Islamic law was, as a rule, accusatory in nature. Cases were initiated not on behalf of state bodies, but by interested parties (with the exception of crimes directed against state power). There were practically no differences between criminal and civil cases (in the judicial procedural order itself). Court cases were heard in public, usually in a mosque where everyone could attend. The parties had to conduct the case themselves, without resorting to the help of lawyers.

The process took place orally, the written office was not used, although since the reign of the Abassids, court records were drawn up in civil cases. The main evidence was the confessions of the parties, the testimony of witnesses, and oaths. The case had to be decided at one meeting and could not be postponed to the next day. In essence, the process in court turned into a kind of competition of the parties, where, naturally, the rich and the poor were not on an equal footing. When making a decision, the judge, with the exception of a relatively small category of cases, had a great deal of discretion, which gave him the opportunity to be guided by personal sympathies and take into account the social situation of the parties. A feature of the procedural law of Sharia was that the court decision was not considered as final and irrevocable. If new facts and circumstances were established in an earlier case, the judge could review his own decision. This opened up room for abuse and arbitrariness. When evaluating evidence in court, formalism dominated. Thus, the testimonies of two trustworthy Muslim witnesses were considered complete evidence in the case. Women's testimonies were treated as half evidence. In the absence of reliable or convincing evidence, an oath was used, which usually had to be pronounced by the defendant or the accused. An oath, pronounced in a special solemn form and with reference to Allah, was accepted as strong evidence in the trial. She released the accused from liability or at least mitigated the punishment (for example, when accused of premeditated murder). The confession of the accused, if it was made by an adult, sane, not under the influence of coercion, was considered as evidence sufficient for a court decision.

Later, the vizier became the chief adviser and the highest official under the caliph. According to Islamic law, viziers could be of two types: with broad power or with limited powers, i.e. only carrying out the orders of the caliph. In the early caliphate it was common practice to appoint a vizier with limited authority. Important officials at the court also included the chief of the Caliph's bodyguard, the head of the police, and a special official who oversaw other officials.

central authorities government controlled were special government offices - sofas. They took shape even under the Umayyads, who also introduced mandatory paperwork on Arabic. The Divan of Military Affairs was in charge of equipping and arming the army. It kept lists of people who were part of the permanent army, indicating the salary they received or the amount of awards for military service. The divan of internal affairs controlled the financial bodies involved in accounting for tax and other revenues, for this purpose collected the necessary statistical information, etc. The divan of the postal service performed special functions. He was engaged in the delivery of mail and government cargo, supervised the construction and repair of roads, caravanserais and wells. Moreover, this institution actually performed the functions of the secret police. As the functions of the Arab state expanded, the central state apparatus became more complex, and the total number of central departments grew.

The system of local government bodies during the 7th-8th centuries. underwent significant changes. Initially, the local bureaucracy in the conquered countries remained intact, and the old methods of government were preserved. As the power of the rulers of the caliphate was consolidated, the local administration was streamlined according to the Persian model. The territory of the caliphate was divided into provinces, ruled, as a rule, by military governors - emirs, who were responsible only to the caliph. The emirs were usually appointed by the Caliph from among their close associates. However, there were also emirs appointed from representatives of the local nobility, from the former rulers of the conquered territories. The emirs were in charge of the armed forces, the local administrative-financial and police apparatus. The emirs had assistants - naibs.

Small administrative divisions in the caliphate (cities, villages) were controlled by officials of various ranks and titles. Often these functions were assigned to the leaders of local Muslim religious communities - foremen (sheikhs).

Judicial functions in the caliphate were separated from administrative functions. Local authorities had no right to interfere in the decisions of judges.

The chief judge was the head of state - the caliph. In general, the administration of justice was the privilege of the clergy. In practice, the supreme judicial power was exercised by a board of the most authoritative theologians, who were also jurists. On behalf of the caliph, they appointed lower-ranking judges (qadi) and special commissioners from among the representatives of the clergy, who supervised their activities on the ground.

The powers of the qadi were extensive. They considered court cases of all categories on the ground, monitored the execution of court decisions, supervised places of detention, certified wills, distributed inheritance, checked the legality of land use, managed the so-called waqf property (transferred by the owners to religious organizations). When making decisions, qadis were guided, first of all, by the Koran and the Sunnah and decided cases on the basis of their independent interpretation. The judgments and sentences of the qadi were, as a rule, final and not subject to appeal. The exception was cases when the caliph himself or his representatives changed the decision of the qadi. The non-Muslim population was usually subject to the jurisdiction of courts composed of members of their own clergy.

The large role of the army in the caliphate was determined by the very doctrine of Islam. The main strategic task of the caliphs was considered to be the conquest of the territory inhabited by non-Muslims, through a holy war. All adult and free Muslims were obliged to take part in it, in extreme cases, it was allowed to hire detachments of infidels (non-Muslims) to participate in the holy war,

At the first stage of the conquests, the Arab army was a tribal militia. However, the need to strengthen and centralize the army caused a series of military reforms at the end of the 7th - the middle of the 8th century. The Arab army began to consist of two main parts (standing troops and volunteers), and each was under the command of a special commander. In the permanent army, a special place was occupied by privileged Muslim warriors. The main arm of the army was light cavalry. Arab army in the 7th - 8th centuries. mainly replenished at the expense of the militias. Mercenary at this time was almost not practiced.

A huge medieval empire consisting of heterogeneous parts, despite the unifying factor of Islam and authoritarian-theocratic forms of exercising power, could not exist for a long time as a single centralized state. Starting from the 9th century, significant changes took place in the state system of the Caliphate.

First, there was an actual limitation secular power caliph. His deputy, the grand vizier, relying on the support of the nobility, pushes the supreme ruler away from the real levers of power and control. By the beginning of the 9th century, viziers actually began to rule the country. Without reporting to the caliph, the vizier could independently appoint the highest state officials. The caliphs began to share spiritual power with the chief qadi, who led the courts and education.

Secondly, the role of the army, its influence on political life. The militia was replaced by a professional mercenary army. The palace guard of the caliph is being created from the slaves of the Turkic, Caucasian and even Slavic origin(Mamluks), which in the 9th century becomes one of the main pillars of central power. However, at the end of the IX century. its influence is strengthened so much that the guards commanders deal with objectionable caliphs and enthrone their proteges.

Thirdly, separatist tendencies are intensifying in the provinces. The power of the emirs, as well as local tribal leaders, is becoming more and more independent of the center. Since the 9th century, the political power of the governors over the controlled territories has become in fact hereditary. Entire dynasties of emirs appear, at best recognizing (if they were not Shiites) the spiritual authority of the caliph. The emirs create their own army, withhold tax revenues in their favor, and thus turn into independent rulers. The fact that the caliphs themselves granted them enormous rights to suppress the growing liberation uprisings also contributed to the strengthening of their power.

With the expansion of the borders of the state, Islamic theological and legal constructions were influenced by more educated foreigners and non-believers. This affected the interpretation of the Sunnah and fiqh (jurisprudence) closely related to it.

According to V.V. Barthold, with the example of a prophet extracted from the Sunnah, began to justify such provisions that were actually borrowed from other religions or Roman jurisprudence. The rules about the number (five) and times of obligatory daily prayers were borrowed from pre-Muslim Persia; from Roman law, the rules on the division of booty were borrowed, according to which the rider received three times more than the infantryman and the commander had the right to choose the best part for himself; in the same way, Muslim jurisprudence, following the example of Roman law, draws an analogy between spoils of war, on the one hand, and products of the sea, treasures found in the earth and minerals mined from mines, on the other; in all these cases, 1/5 of the income went to the government. In order to connect these legal provisions with Islam, stories were invented from the life of the prophet, who allegedly prayed at the appointed time, applied the indicated rules when dividing the booty, etc.

The doctrine of sources is one of the most developed in the science of Islamic law and is distinguished by great originality. As already noted, Muslim researchers distinguish two groups of interrelated norms within Muslim law, the first of which is the legal prescriptions of the Koran and the Sunnah (collections of legally significant traditions - hadiths - about the actions, statements and even silence of the Prophet Muhammad), and the second - the norms formulated by the Muslim legal doctrine on the basis of rational sources, primarily the unanimous opinion (ijma) of the most authoritative (legal scholars - mujtajs and faqihs - and inferences by analogy (qiyas).

As fundamental, the norms of the first group are considered, especially those recorded in the Koran. To characterize the Qur'an as a source of Islamic law, it is important to bear in mind that among its norms regulating human relations, general provisions, having the form of abstract religious and moral guidelines and giving scope for interpretation by jurists. As for the few specific rules of conduct, most of them arose on special occasions when the Prophet resolved specific conflicts, assessed individual facts, or in response to questions posed to him. The predominant part of the normative prescriptions of the Sunnah also has a causal origin.

After the death of Muhammad in 632 until the beginning of the 8th century. the development of Islamic law continued to follow a mainly causal path. It is believed that the four righteous caliphs - Abu Bakr, Omar, Osman and Ali (who ruled in 632 - 661, like other companions of the Prophet, solving specific supports, turned to the Koran and the Sunnah) L. R. Syukiyainen. Muslim Law. Questions of theory and practice. 1986 p. 65. In the case of the silence of the latter, they formulated new rules of conduct on the basis of an extensive interpretation of these sources, and even more often relied on various rational arguments. Moreover, in the beginning, decisions on issues not settled by the Quran and Sunnah were made by the Companions in accordance with the unanimous opinion formed after consultations with their associates and major jurists. Together with the provisions of the Koran and the Sunnah, these rules became the normative basis for deciding cases by Muslim judges - qadis. At the same time, each of the companions of the Prophet was recognized the right to independently formulate new rules of conduct on the basis of their own discretion. Such norms were later called the statements of the Companions. The prescriptions of the Koran and the Sunnah, as well as the causal-normative decisions of the companions of the Prophet and their first followers are theoretically considered as the basis of Muslim law in general and any of its branches. Some Soviet authors are even more definite and claim that the basic norms of Muslim law are contained in the sunnah. Such an assessment, in our opinion, is an exaggeration. More convincing is the point of view in the Arab teachings, which note that the Qur'an and the Sunnah contain few specific norms of Muslim law - no more than a dozen norms of state and criminal law, the same number of rules governing obligations, etc. - for the majority As for issues that require regulatory regulation, these sources remain silent. A similar position is taken by authoritative bourgeois jurists. Thus, R. David, a prominent French comparativist, argues that the provisions of a legal nature contained in the Koran are not sufficient to draw up a code.

By the beginning of the 8th century, the Muslim legal doctrine was just beginning to take shape, and until that time it could not play any significant role as a source of effective law. The very first steps on the way to its emergence was paradise - a relatively free discretion, which was used in the interpretation of the Koran and the Sunnah and the formulation of new rules of conduct in the event of silence of these sources.

From the middle of the 8th century, when the main schools of Muslim law began to take shape in the caliphate, a new stage in the formation of Muslim legal science began - the period of codification and the imams - the founders of the interpretations (Wahabs), which lasted about two and a half centuries and became an era of maturity, golden ages in development of Islamic law. Its main result was the emergence of various directions in the interpretation of the Koran and Sunnah, each of which relatively autonomously developed its own system of legal norms. This situation, ultimately, was explained by the historical origins of Muslim law - the peculiarities of the material and cultural conditions of its formation and development. The main objective reason was the noticeable socio-economic differences between the regions of the vast Arab Caliphate, where Muslim law was supposed to operate. Among the factors of an ideological order, of great importance was the fact that, as already noted, the fundamental sources fixed few rules of conduct that became legal. Special meaning doctrine for the development of Muslim law was explained not only by the gaps and inconsistencies of the Koran and the Sunnah, but also by the fact that most of the norms contained in them were considered (of divine origin), and therefore - eternal and unchanging. Therefore, theoretically, they could not simply be discarded and replaced by the regulatory legal acts of the state. Under these conditions, Muslim jurists, based on the assumption that the fundamental sources contain answers to absolutely all questions and the task is only to find them, have developed various methods for extracting new norms to resolve issues not directly regulated by the Quran and Sunnah. Muslim law was able to fulfill its historical mission because it was not limited to a few instructions of the Koran and contradictory hadiths, but relied on them in the most general terms as its ideological and theoretical base, drawing specific content from the works of jurists. If initially there were no strict rules for formulating new rules of conduct, then later they were developed. Moreover, each of the Muslim legal interpretations created its own set of methods of legal technique, which made it possible to introduce new norms into circulation in the event of the silence of the fundamental sources. A characteristic feature of this path of development of the normative content was that different schools of Islamic law, using their own methods, came to different decisions in similar situations.

The doctrinal development of the normative composition of Muslim law was theoretically based on the already mentioned principle of freedom of ijtihad. In practice, it meant the introduction by jurists of several varieties of norms. First of all, by interpreting the general guidelines of the Qur'an and the Sunnah, they gave them a legal character and formulated specific judicial decisions on their basis. In addition, with reference to the need, the interests of the community, benefit, change in custom or the basis of the norm, they replaced individual specific instructions of the Koran and Sunnah with new rules of conduct. Ijtihad also meant the possibility of choosing among the conflicting specific prescriptions of the Sunnah and the individual decisions of the companions of the prophet, the most suitable for a given case. Finally, in the case of the silence of these sources, jurists created new norms with the help of a variety of logical techniques, which Islamic legal science calls rational sources of Islamic law. In fact, these were not sources of law, but ways of interpreting certain provisions of the Koran, the Sunnah, or the decisions of the companions of the Prophet, as well as introducing new rules of conduct in cases not provided for there. The source of such new norms was the doctrine that formulated them on the basis of these rational methods. Therefore, one can come to the conclusion that along with the Koran, the Sunnah and the judicial and normative decisions of the companions of the prophet (made individually or on the basis of consensus), it is the doctrine, having absorbed all the so-called rational sources, that has become an independent source (external form) of Muslim law in legal sense. Moreover, within the framework of the doctrine, most of the norms of the current Islamic law were convened.

The rapid development of ijtihad in the VIII-X centuries. and the advent of madhhabs actually consolidated the position of the doctrine as the leading source of Islamic law. Already in the middle of the VIII century. many judges began to adhere to one or one sense, most often the one that the caliph preferred or that was most popular among the local population. True, for at least another two centuries, not all qadis followed a strictly defined sense, preferring to judge at their own discretion. Even those of them who waived the right to ijtihad could freely change their attachment in solving some cases, they applied conclusions of one kind, and in considering others they resorted to the norms proposed by supporters of another school of law.

At the turn of the X and XI centuries. the situation has changed significantly. Ijtihad gradually came to be regarded not as free discretion outside the Qur'an and Sunnah, but only as an opportunity to choose any of the schools of Islamic law. According to the conclusion of most Muslim researchers, then the age of ijtihad was replaced by the age of taqlid (literally, imitation, tradition), which meant that in the event of the silence of the Koran and the sunnah, judges lost the right to make decisions based on their own legal consciousness and henceforth had to strictly follow one of the recognized schools of Islamic law . Already at the end of the X century. the rulers required judges to consult with scholars in cases in which they were unable to decide on the basis of the Qur'an and sunnah. Although these sources, along with ijma, naturally, they continued to be considered fundamental and not subject to revision, in fact, qadis could no longer directly refer to them, but were obliged to apply the norms enshrined in them only in the form in which they were interpreted in a certain sense. It is no coincidence that generally accepted in Muslim legal theory is the conclusion that the legislative power in the Muslim state belongs to the Mujtahids, among whom the main role is given to the founders of the largest legal schools and their most authoritative students and followers. True, in contrast to the Sunni concept, Shiite legal thought continued to defend the freedom of ijtihad. But in practice, even here, the rule-making functions were concentrated in the hands of a narrow group of followers of the classical Shiite persuasion, whose opinions were considered binding on ordinary Shiite Muslims.

So, if in the VII-VIII centuries. The sources of Muslim law were indeed the Koran and the Sunnah, as well as Ijma and statements of associates, then, starting from the IX-X centuries. this role gradually shifted to doctrine. In essence, the cessation of ijtihad meant the canonization of the conclusions of the main schools of Muslim law that had developed by the middle of the 11th century. The conclusion that from that moment on the doctrine became the main source of Islamic law is shared by authoritative Arab and Western scholars. For example, the prominent Egyptian scholar Shafik Shikhata writes: It is true that after the formation of various interpretations in the era of the Abbasids the judge began, in principle, to refer to the works created by faqihs. R. Charles notes that historically Muslim law does not originate directly from the Koran, it developed on the basis of practice that often departed from the holy book, and the highest degree of development of the sacred law coincides with the emergence of schools.

Thus, the vast majority of the norms of Islamic law are the result of its doctrinal development. To characterize them, it is important to keep in mind that Muslim jurists for a long time did not dare to formulate generalized abstract rules of conduct and preferred to look for solutions on specific cases. At the same time, they played an important role in adapting the general guidelines-orientations and causal norms enshrined in the Koran and the Sunnah, or individual decisions of the companions of the Prophet to the needs of the socio-political forces that dominated the Muslim state. Therefore, with the onset of the period of tradition, the development of the doctrine and, consequently, of the system of current Islamic law, not only did not stop, but continued very actively within several schools, which often had quite definite political interests behind them.

During the first two or three centuries of the tradition period, the formation of Muslim law was completed, which practically became the law of one school or another. As R. Charles rightly notes, with the expansion of the Arab conquests, a single Muslim law gave way to a whole series of Muslim rights. The term fiqh which was originally used to refer to the Muslim legal doctrine, fell to be applied to the Islamic law itself in an objective sense. It is important to keep in mind that with the onset of the period of tradition, the decisions of the mujtahids, which were previously issued in specific cases, acquired the character of a kind of judicial precedent, i.e., became legal norms. The transformation of the individual prescriptions of jurists into the norms of Islamic law was also greatly facilitated by the sanctioning of the doctrine by the state, which was expressed in the appointment of judges and the imposition on them of the duty to consider and decide cases on the basis of the teachings of a particular school. Yes, in early 16th century Sultan Selim I issued a decree on the use by judges and muftis of the Ottoman Empire only of the conclusions of the Caliphism.

But the most notable achievement in this area was the formulation of the principles of legal regulation, a kind of general part of Islamic law, which was considered as a starting point in the application of any particular legal norm. Modern Muslim researchers note that such general principles are not contained in any specific verses of the Koran or traditions, but were developed by jurists based on the interpretation of all sources of Islamic law and analysis of the practice of its specific norms.

In other words, if at first Muslim jurists concretized the abstract religious and moral guidelines of the Koran and the Sunnah in individual normative decisions of a legal nature (along with the application of specific norms enshrined in these sources), then later, due to the need to further improve the mechanism for the implementation of Muslim law on the basis of interpretation of its causal prescriptions, they formulated the general legal principles of this legal system. It is no coincidence that initially this was done with the sole purpose of better understanding the norms of Islamic law and, most importantly, choosing the most appropriate solutions for specific cases from a rich arsenal of conflicting rules. It is quite understandable, therefore, that such principles were generally the same for all interpretations. Their appearance was the culminating moment in the development of the theory and practice of Islamic law. Since that time, there have been noticeable changes in its structure: norms-principles have taken a special place in it, which began to be considered by the doctrine as such an element of the system of Muslim law that stands above any of its branches. For example, unlike the usual norms formulated by the Mujtahids, and even certain provisions of the Qur'an and Sunnah, these principles, which are also the result of ijtihad, cannot be revised. All this confirms the conclusion that doctrine was the main source of Islamic law. After all, if some of the specific norms were enshrined in the Qur'an and the Sunnah, then the principles that make up its most stable part were developed by legal scholars.

At the beginning of the XX century. Muslim countries adopted the first codified acts in the field of personal status. Currently, most of them (Egypt, Algeria, Syria, Iraq, Lebanon, Tunisia, Jordan, Somalia, etc.) Muslim law retains the role of a regulator of this particular industry, in which, as a rule, state-issued legal acts fixing the relevant principles and norms of fiqh. In addition, based on the reception of Muslim legal norms, the legislation here regulates the legal regime of waqf property, some issues of legal capacity, and certain types of transactions (for example, donation). Individual norms of Muslim origin are also included in criminal, civil, and procedural legislation.

In another group of countries under consideration (Saudi Arabia, the Islamic Republic of Azerbaijan, the states of the Persian Gulf, Libya, Iran, Pakistan, Sudan) the scope of Islamic law is more significant and often covers not only personal status, but also criminal law and process, some types of financial and economic relations and even individual institutions of state law.

In the legal systems of some of them (for example, Oman and certain principalities of the Persian Gulf), Islamic law in the form of doctrine continues to play a leading role, while in others there is a tendency to include its norms and newly adopted legislation. Moreover, if in the IAR, starting from the mid-70s, a number of laws came into force that consolidated the norms of fiqh, which were previously used in the form of a doctrine, then the legal systems of Libya, Iran, Pakistan and Sudan in the last decade are characterized by an increase in the influence of fiqh , manifested in the broad legislative consolidation of Muslim legal norms in those sectors where they had not previously acted.

The legislation of individual countries provides for the possibility of applying, in case of silence of the law, not the conclusions of a certain kind of Muslim law, but its basic principles. A similar provision is enshrined, for example, in the first articles of the civil codes of Egypt, Syria, Iraq, Libya and Algeria, as well as in the family law of Iraq. Moreover, since the civil codes themselves fixed a number of Muslim legal norms, when interpreting them, one should refer to the relevant works of authoritative Muslim jurists.

In general, however, in the modern legal systems of the countries under consideration, the norms of Muslim law are relatively rarely presented in the traditional form of doctrine. As a rule, they are enshrined in the articles of legislation adopted by the competent authorities of the state. In this regard, the position expressed by the Czechoslovak scholar V. Knapp that Muslim law in its current form is basically doctrinal needs to be clarified.

The strengthening of the influence of Islam on the legal development of a number of countries of the East in recent years objectively leads to an increase in the role of the Muslim legal doctrine in the preparation of newly adopted laws that fix general principles and specific norms of fiqh, most of which were developed by Muslim legal scholars back in the Middle Ages.

Conclusion

In the Arab Caliphate, as in all Muslim states, the Koran was the main source of law. Theoretically, Islam excluded the legislative powers of the rulers, who could only interpret the instructions of the Koran, while taking into account the opinion of Muslim theologians.

With the outward immutability of the norms of law, during the period of feudalism they were filled with new class content, which was expressed in protecting the interests of feudal landownership and the personality of the feudal lords, in securing the dependence of the peasants, their exploitation. Openly proceeding from class inequality, the medieval law of the countries of the East also affirmed class, caste, and religious inequality, pettily regulating people's behavior in all spheres of public life.

In general, however, in the modern legal systems of the countries under consideration, the norms of Muslim law are relatively rarely presented in the traditional form of doctrine. As a rule, they are enshrined in the articles of legislation adopted by the competent authorities of the state. In this regard, the position expressed by the Czechoslovak scholar V. Knapp that Muslim law in its current form is basically doctrinal needs to be clarified.

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The caliphate as a medieval state was formed as a result of the unification of Arab tribes, the center of settlement of which was the Arabian Peninsula.

A characteristic feature of the emergence of statehood among the Arabs in the 7th century was the religious coloring of this process, which was accompanied by the formation of a new world religion - Islam. The political movement for the unification of the tribes under the slogans of rejecting paganism, polytheism, objectively reflecting the tendencies of the emergence of a new system, was called "Khanif" / Tokarev, 1986, p. 85/.

The search by Hanif preachers for a new truth and a new god, which took place under the strong influence of Judaism and Christianity, is associated primarily with the name of Muhammad. Muhammad argued that the Islamic teaching does not contradict the two previously widespread monotheistic religions - Judaism and Christianity, but only confirms and clarifies them. However, at the same time it became clear that Islam contains something new. His cruelty, and sometimes even fanatical intolerance, was quite clearly manifested in some matters, especially questions of power and the right to power. According to the doctrine of Islam, religious power is inseparable from secular power and is the basis of the latter, in connection with which Islam demanded the same unconditional obedience to God, the prophet and those who have power.

In the history of the medieval empire, called the Arab Caliphate, two periods are usually distinguished: Damascus and Baghdad, which also correspond to the main stages in the development of the Arab medieval society and state.

The development of Arab society was subject to the basic laws of the evolution of Eastern medieval societies, with a certain specificity of the action of religious and cultural-national factors.

The characteristic features of Muslim society were the dominant position of state ownership of land with the widespread use of slave labor in the state economy (mines, workshops), state exploitation of peasants through rent-tax in favor of the ruling elite, religious-state regulation of all spheres of public life, the absence of clearly defined estates. groups, the special status of cities, any freedoms and privileges.

Since the legal status of an individual was determined by religion, differences in the legal status of Muslims and non-Muslims (Zhimmi) came to the fore. Initially, the attitude towards the conquered Zemmievs was distinguished by sufficient tolerance: they retained self-government, their own language and their own courts. However, over time, their humiliated position became more and more obvious: their relationship with Muslims was regulated by Muslim law, they could not marry Muslims, they had to wear clothes that distinguish them, supply the Arab army with food, pay a heavy land tax and poll tax.

At the first stage of development, the caliphate was a centralized theocratic monarchy. In the hands of the caliph was concentrated spiritual (immat) and secular (emirate) power, which was considered indivisible and unlimited. The first caliphs were elected by the Muslim nobility, but rather soon the power of the caliph began to be transferred by testamentary order.

Later, the vizier became the chief adviser and the highest official under the caliph. According to Islamic law, viziers could be of two types: with broad power or with limited powers, i.e. only carrying out the orders of the caliph. In the early caliphate it was common practice to appoint a vizier with limited power. Among the important officials at the court were also the chief of the Caliph's personal bodyguard, the head of the police, and a special official supervising other officials.

The central government bodies were special government offices - sofas. The Divan of Military Affairs was in charge of equipping and arming the army. It kept lists of people who were part of the permanent army, indicating the salary they received or the amount of awards for military service. The Divan of Internal Affairs controlled the financial authorities involved in accounting for tax and other revenues, for this purpose the necessary statistical information was collected. The sofa of the postal service performed special functions. He was engaged in the delivery of mail and government cargo, supervised the construction and repair of roads, caravanserais and wells. Moreover, this institution actually performed the functions of the secret police / Bolshakov, 1989. T. I, p. 570-633/.

The system of local government bodies during the 7th-8th centuries. Has undergone significant changes. Initially, local governments in the conquered countries remained intact, and the old methods of government were preserved. As the power of the rulers of the caliphate was consolidated, the local administration was streamlined according to the Persian model. The territory of the caliphate was divided into provinces, ruled as a rule by military governors - emirs. The emirs were usually appointed by the Caliph from among their close associates. However, there were also emirs appointed from representatives of the local nobility, from the former rulers of the conquered territories. The emirs were in charge of the armed forces, the local administrative-financial and police apparatus. The emirs had assistants - naibs.

Small administrative divisions in the caliphate (cities, villages) were controlled by officials of various ranks and titles. Often these functions were assigned to the leaders of local Muslim religious communities - foremen (sheikhs).

Judicial functions in the Caliphate were separated from administrative ones. Local authorities had no right to interfere in the decisions of judges.

The chief judge was the head of state - the caliph. In general, the court was the privilege of the clergy. In practice, the supreme judicial power was exercised by a board of the most authoritative theologians, who were also jurists. On behalf of the caliph, they appointed lower-ranking judges (qadi) and special commissioners from among the representatives of the clergy, who supervised their activities on the ground.

The powers of the qadi were extensive. They considered court cases of all categories on the ground, monitored the execution of court decisions, supervised places of detention, certified wills, distributed inheritance, checked the legality of land use. When making a decision, qadis were guided primarily by the Koran and the Sunnah and decided cases by their own interpretation. Judicial decisions of the qadi were final and not subject to appeal. The exception was those cases when the caliph himself or his representatives changed the decision of the qadi. The non-Muslim population was subject to the jurisdiction of courts composed of representatives of their clergy.

The large role of the army in the caliphate was determined by the very doctrine of Islam. The main strategic task of the caliphate was considered to be the conquest of the territory not inhabited by Muslims, through the "holy war". All adult and free Muslims were required to take part in it.

At the first stage of the conquests, the Arab army was a tribal militia. However, the need to strengthen and centralize the army caused a number of military reforms at the end of the 7th - the middle of the 8th centuries. The Arab army began to consist of two main parts (standing troops and volunteers), and each was under the command of a special commander. In the permanent army, a special place was occupied by privileged Muslim warriors. The main arm of the army was light cavalry.

A huge medieval empire consisting of heterogeneous parts, despite the unifying factor of Islam and authoritarian-theocratic forms of exercising power, could not exist as a single whole for a long time. Starting from the IX century. Significant changes took place in the state system of the caliphate.

First, there was an actual limitation of the caliph's secular power. His deputy, the grand vizier, relying on the support of the nobility. Pushes the supreme ruler away from the real levers of power and control. Without reporting to the caliph, the vizier could independently appoint the highest state officials. The caliphs began to share spiritual power with the chief qadi, who led the courts and education.

Secondly, the role of the army and its influence on political life increased even more in the state mechanism of the caliphate. The militia was replaced by a professional mercenary army. The palace guard of the caliph is created from the slaves of Turkic, Caucasian and even Slavic origin (Mamluks), which in the 9th century. becomes one of the main pillars of the central government. However, at the end of the IX century. her influence becomes so great. That the guards commanders deal with objectionable caliphs and enthrone their proteges.

Thirdly, separatist tendencies are intensifying in the provinces. The power of the emirs, as well as local tribal leaders, is becoming more and more independent of the center. From the 9th century the political power of the governors over the administered territories becomes in fact hereditary. Whole dynasties of emirs appear. The emirs create their own army, withhold tax revenues in their favor, and thus turn into independent rulers.

The collapse of the caliphate into emirates and sultanates - independent states in Spain, Morocco, Egypt, Central Asia, Transcaucasia - led to the fact that the Baghdad caliph, while remaining the spiritual head of the Sunnis, by the 10th century. actually controlled only part of Persia and the capital territory. In the X and XI centuries. As a result of the capture of Baghdad by various nomadic tribes, the caliph was twice deprived of secular power. The eastern caliphate was finally conquered and abolished by the Mongols in the 13th century. The residence of the caliphate was transferred to Cairo, in the western part of the caliphate, where the caliph retained spiritual leadership among the Sunnis until the beginning of the 16th century, when it passed to the Turkish sultans / Akhmedov, 1982, p. 378/.

Sharia is a legal prescription that is integral to the theology of Islam, closely related to its religious and mystical ideas. Islam considers legal institutions as part of a single divine law and order.

The most important source of Sharia is the Koran, the holy book of Muslims, the compilation of which is attributed to Muhammad. The Qur'an consists of 114 chapters (suras) divided into 6219 verses (verses). Only about 500 verses contain prescriptions classified as Sharia. And only 80 of them can be considered legal. The second source of law obligatory for all Muslims was the sunnah (“sacred giving”), which consisted of numerous stories (hadith) about the judgments and actions of Muhammad himself. Despite the processing of the hadiths, the sunnah contained many contradictory provisions, and the choice of the most "authentic" of them entirely depended on the discretion of the judges.

The third place in the hierarchy of Muslim law was occupied by ijma (“general consent of the Muslim community”). In practice, ijma consisted of concurring opinions on religious and legal issues, which were expressed by the companions of Muhammad or later by the most influential Muslim theologians - jurists.

One of the most controversial sources of Islamic law was qiyas - the solution of legal cases by analogy. According to qiyas, a rule established in the Qur'an, sunnah or ijma can be applied to a case that was not expressly provided for in these sources of law. Qiyas, thus, not only made it possible to regulate new social relations, but also contributed in a number of cases to the liberation of Sharia from the theological plaque. But in the hands of feudal Muslim judges, qiyas often became an instrument of outright arbitrariness.

As an additional source, Sharia allowed local customs that were not directly included in Muslim law itself during its formation, but did not contradict its principles.

Finally, the sources of law in the Arab Caliphate were considered derivatives of the Sharia, decrees and orders of the caliphs - firmans. In the later Muslim states (Ottoman Empire, etc.), with the development of legislation, state laws became sources of law - kanuny / Zhidkov, 1997, p. 486/.

One of the largest phenomena in medieval civilization in the East was Islamic law (Sharia). This legal system, which eventually acquired world significance, arose and took shape within the framework of the Arab Caliphate. After his fall, Muslim law did not lose its former significance.