CHAPTER 8

KHĀRIJĪ LAW

THE variants of Muhammadan law which are recognized by the ancient sects of Islam, the Khārijīs and the Shiites, do not differ from the doctrines of the orthodox or Sunni schools of law more widely than these last differ from one another. We must not, however, conclude from this well-known fact, as has been done, that the features common to Khārijī, Shiite, and orthodox law are older than the schisms which split the Islamic community within its first century. When the Khārijīs and the Shiites seceded from the orthodox community, Muhammadan law did not yet exist, as we have seen earlier in this book.¹ For a considerable period, and during the second and third centuries A.H. in particular, the ancient sects remained in a sufficiently close contact with the Sunni community, for them to adopt Muhammadan law as it was being developed in the orthodox schools of law, introducing only such superficial modifications as were required by their own political and dogmatic tenets. This point of view is not only in keeping with the main results of this book; it is confirmed by positive indications which we shall discuss in the present and the following chapters.²

The foundation of the legal doctrines of the Sufriya and Ibādī branches of the Khārijīs is attributed to the two Successors 'Imrān b. Hittān and Jābir b. Zaid respectively;³ both appear also among the transmitters of traditions acknowledged by the orthodox community.⁴ The two historical persons in question were active though not extremist Khārijīs; their names, being those of respected members of the generation of the Successors, were used in the process of fictitious creation of isnāds; and this enabled the Khārijī groups to claim them as founders of their law.

The political and dogmatic principles of the Khārijīs led to certain consequences in law, particularly in the law of war.⁵