Qanun

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QANUN

Qanun (pl. qawanin) is a word that apparently entered into Arabic from Greek, although according to some reports it might have been borrowed from Persian or Latin or have meant the "way to something" or its measurement in old Arabic. The word, however, has come to have broad meanings including a particular musical instrument, known simply as al-qanun, tax assessments, state taxes and tariffs, registers and lists, land measurements, and also rules and regulations. In modern times, qanun generally refers to state law, although the word is often used to signify guiding rules, customs, and principles. In both premodern and modern times, qanun often referred to secular laws and administrative rules, as opposed to religious laws or shari˓a. The word was often used in the titles of books written as early as the tenth century. The titles of some of these books included: al-Qawanin al-shar˓iyya (The principles of shari˓a), Qawanin al-ahkam al-shar'iyya (The principles of Islamic law), Tashrih al-qanun (The explanation of the law), Qawanin al-siyasa (The rules of governance), Qanun al-sa˓ada (Rules of conduct and principles of happiness), Qanun al-adab (Rules of good character), Qanun al-balagha (Rules of eloquence), Qanun fi al-tibb (Avicenna's book on medicine), and Qawanin al-riyada (Principles of mathematics). All of these books were written between the tenth and fifteenth centuries, indicating that the word had passed into common Arabic usage, and was taken to mean the rules or principles of something.

From the earliest centuries of Islam and onward, the word was used in a more specialized context to refer to tax registers and lists, especially of land taxes, as in qanun al-kharaj, and the regulations and assessments of land taxes, as in al-qawanin almuqarrara. In addition, a large number of texts written on the rules of public administration or the administration of the ruler's office were titled qanun al-rasa˒il and qanun al-diwan. In the sixteenth century, Ghiyath al-Din Khwand ˓Amir wrote Qanun-e-Humayuni, which recorded the rules and ordinances established by the emperor Humayun, and some of the building erected by his order.

From the Umayyad period, and especially during the Ottoman era, the word qanun also referred to state regulations, imperial decrees, or edicts that were based on public interest and executive discretion, instead of the jurist-based shari˓a law. Such regulations were considered temporal in nature, and therefore, they remained in effect as long as they were decreed by a ruler. Upon the death or removal of a ruler, such regulations had to be confirmed or continued by a successor. These regulations were not limited to the field of taxation, but often covered matters related to court procedure, commercial law, and criminal law as well. They also canonized customary practices especially for professional guilds and merchants. As far as Muslim jurists were concerned, these regulations were described as executory laws (qawanin ˓urfiyya) that could be mandated by public interests, but such regulations were not considered part of the divinely based shari˓a law. Therefore, such decrees and regulations were documented, publicized, and enforced by state functionaries, including judges, but they were not memorialized in the books of classical Islamic jurisprudence. From the perspective of Muslim jurists, the legitimacy of such regulations depended on the extent to which they served the public interest, and the interests of justice, and also to the extent they did not conflict with the jurist-made shari˓a law.

The degree to which consecutive Muslim governments relied on qanun, as executive regulations, at the expense of the jurist-based shari˓a law varied widely. Muslim jurists did not always oppose the imposition of administrative laws or regulations by the state, and, in fact, in tracts written on politics, jurists often acknowledged that such regulations are a functional necessity. However, since the Umayyad period, there was a pronounced tension between state functionaries and bureaucrats, and the juristic class. The jurists, as the shari˓a experts, were suspicious, and often defensive, toward attempts by bureaucrats to systematize and centralize the law by limiting the discretionary powers of the jurists. Nonetheless, in the period following the Mongol invasions, various dynasties resorted to increased executive lawmaking, often resulting in aggravating the tensions between the juristic class and the state.

The usage of the term qanun, in the sense of secular laws, became particularly pronounced in the Ottoman era (1218–1924). The Ottoman caliph Mehmed II "the Conqueror" (r. 1451–1481) promulgated his famous qanun-nama as a systematic codified set of laws covering various aspects of administrative law, commercial law, and criminal law. Jurists at the time were not always supportive of such attempts at centralization and codification of the laws, and often perceived it as an infringement on the integrity of the Islamic common law, as interpreted and developed by jurists. The opposition of jurists of centralized state-based laws reached a point that in 1696 Mustafa II (r. 1695–1703), by decree, forbade the use of the word qanun in conjunction with the word shari˓a. This was induced by the efforts of the jurists to make clear that state-issued qanun be separate and apart from shari˓a law.

With the age of colonialism, the jurisdiction of shari˓a law in most Muslim countries had become progressively restricted and, eventually, confined mostly to personal laws dealing with marriage, divorce, and inheritance. Most Muslim countries adopted a code-based system of law modeled after the French civil law system. In that respect, most Muslim countries adopted civil and criminal law codes, titled "the qanun of such and such." For instance, in most Arabic-speaking countries one will find the following: al-qanun almadani (the civil law code), al-qanun al-jina˒i (the criminal law code), qanun al-ijra˒at (code of legal procedures), and alqanun al-tujari (the commercial code). In such countries, even in the field of personal law, where shari˓a still enjoys the dominant influence, matters relating to marriage, divorce, and inheritance have been codified in codes known as qanun al-ahwal al-shakhsiyya (the personal law code). In the modern age, state regulations or executive decrees, as opposed to codes, are often referred to as qararat, bayanat, lawa˒ih, or marasim. Some Muslim countries, such as Saudi Arabia, have not adopted a civil law system, and, instead, rely on the shari˓a common law, and on executive decrees issued on specific matters such as banking, foreign investments, and labor and employment regulations. Although the word qanun today is used in a technical sense to refer to enacted codes of law, it is still used in the more expansive sense of law in general, including Islamic law.