CHAPTER 2 OPMENT OF CONCEPTION, ORIGIN AND DEVEL MUSLIM LAW psis SYNOPS" carat Meaning of Muslim conception of law. igious Muslim Legal System compared with 7 oni " er systems & Paference between Shariat ang Who is a Mustim? pa Origin of Muslim Law. Traditione-—Sunnal’ and ‘Ahadis’ 10. Development of _ im tn . different conceptions f Law.—There are mainly two m1 . is the case sith the Hindu law, Islamic Jaw ete, ‘founded upon revelation and is bleng * (ilm-ul-yaqin) in the of ‘Certitude’ their weakness cannot understand 1. Muslim Concepti of law, one of divine origin as and another man-made. Muslim law with religion. There is in Islam, a doctrine matter of Good and Evil. Human beings due to derst what is good and evil, unless in the matter they are guided by tne inspicet Prophet, What is morally beautiful that must be done, and w! tes oY ugly must not be done. That is law of Shariat and nothing else can cit ne ieihe view of Muslim jurists(In th aris of Abdul Rahim, law (Hukum’ ® that which is established by 2 ommunication from God with reference t nest s acts expressive either of demand oF indifference on his part oF being merely declaratory. There are certain important questions. These questions cannot answered by human beings. The answer lof these questions is given in the Quran and in the Hadith. If there is nothing tither in the Quran or in the Hadith to answer a particular question then the dictates of secular reason have to be observed. he totality of shariat is law in the wider sense. It means the totality_of Allah's corsmandment Each one of such commandments is called hukum, It is a doctrine Sf duties. Legal considerations and individual rights have secondary place in it, Shariat says that religious of five kinds, al-ahkam all- Khamsa. Those strictly enjoined are farz ‘and those strictly forbidden are haram. There are two more categories which a Muslim is advised to do and things which a Muslim is advised to refrain (makruh) and finally there are things about which religion is indifferent. Thus the Shariat is totalitarian; a human activity is embraced in its sovereign domain. Law proper, in Islam, is(Figh)and it differs from Shariat. Figh literally means intelligence and covers the whole science of jurisprudence. It implies the independent exercise f intelligence as regards points of law in the absence of their solution by the Quran or Hadith. Figh, has been defined by the Muslim jurists as the knowledge of one’s right and obligation derived from Quran or seadith or deduced therefrom, or about which the learned have agreed. In the vineds of Abdur Rahim, Shariat means, matters which would not have been known but for the communication made to us by lawgivers.? The path of Shariat 7, Fyzee : Oullines of Mohammadan Law, 1 pp. 16-17 (Sth ed). 2. Abdur Rahim, The principle of Muhammadan Jurisprudence. p. 50. [6] Scanned with CamScannerCONCEPTION, ORIGIN AND DEVELOPMENT OF MUSLIM LAW 7 is laid down by God and His apostle (Prophet Mohammad) whereas figh is the result of human endeavour. Fiqh signifies the science of law; and Shariat is the divinely ordained path of rectitude. Shariat is the wider circle and embraces all human activities; figh is the narrower one, and deals with the legal acts. It is, however, very difficult to make a sharp distinction between the two terms as the law in Islam is so intermixed that even a pure secular act which is in accordance with texts gets religious merit and blessing of God. Therefore, in Practice both terms are used synonymous as the criteria of all human actions; whether in the Shariat or in the figh, is the same seeking the approval of Allah by confirming to an ideally perfect code. Islamic conception of law, Shariat and Figh, is connected with religion. Thus the postulates of Muslim jurisprudence are as follows : 1. The first postulate is Iman or faith in God and acknowledgment of His authority over our actions. eet 2. The second is the belief in the Prophethood of Mohammad. God alone is the legislator in Islam and Quran is the Holy law book. The authority to make laws primarily Bolohas 16 God cod He Teas Fat ootcome legislative power in the Islamic system. Eversince the days of Adam God has promulgated His laws on this earth from time to time through His miessengers (Rasul) and prophets (ambiya), But as laws are needed for the benefit of the community the Divine Legislator has delegated to it power to lay down laws by the resolution of those men in the community who are competent in that behalf, i.e,, the Mujtahids (or jurists). The laws so laid down are presumed to be what God intended and are thus covered by the definition of law as a communication from God. Mohammedan jurisprudence concedes legislative powers to the jurists acting in a body. Such powers, though derived from the Divine Legislator are practically unlimited and since the Mohammedan religion does not admit the possibility of further revelation after the death of the Prophet, the principle of legislation by jurists acting in a body, ie., Ijma may be regarded a8 the ly authority of legislation now available in the Mohammedan system. In this system, the legal rules are so deeply connected with the moral and religious rules that it is difficult to separate them. In the words of Mr. Justice Mahmood “Hindu and Mohammedan Law are so intimately connected with religion that they cannot readily be dissevered from it”) 2. Muslim Legal System compared with other systems.—The Muslim Legal * system differs from other modern systems, in the sense that it purports to have its sole source of Divine Will communicated, on its final form, through a single human channel. The Mosaic Law comes nearest to it in this respect, but whereas the Jew speaks of “the law and the prophets”; Muslims acknowledge no divine inspiration subsequent to Mohammad, while holding all previous revelations, however genuine and important in their days, to have been absolutely merged in his revelation. The Hindus derive their law from the Shastras, which in their turn purport to interpret and expand the Vedas. Both are vaguely spoken of as 1. Govind Dayal v. Inayat (1885) 7 All, 775, Scanned with CamScanner5 MOHAMMEDAN LAW attempt to specify the date at which o, revealed from Heaven, but there is no e vast heterogeneous mass way the persons through whom, any portion of th : communicated. The Christian has also his sacred scriptures, and earlie, cated ne rrsalfand the Jew, and a later distinctively “isan He has also, like the Jew and Muslim, a single histone personage whom he reveals as the founder of his religion. But the New Testaments va the ‘Pentateuch’ and the Quran does not purport ta have been Lavina by the founder, but by diverse disciples of his, many years after his deat ‘The Muslim sacred law Shariat stands on different basis eased " sayings anc centres more round the personality and the s8YiNBs or OT ihe personality than di if Trinitaric ‘ i an did even the Cannon Law of Tintarian COTTE pers into the minute of the defined Jesus. And its scope is inBNNCY Tn “private and public, details of the daily lives of men, religious and secular. 3. Who is a Muslim’ believes in the mission o! there is one God and that Mohammad is believes in a number of other essential beliefs in says “....Any person who professes the religion of Islam, in other words, accepts the unity ‘of God and the prophetic character of Mohammad is 7 has been followed in Narantakath_v. Prakkal, Muslim...” This view wherein it was held that the essential doctrine of Islam is that there is one wherein Mohammad is the Prophet and any belief in excess of this is, at least coe amour, a redundancy. Thus to be a Muslim only twe things are required— tor at allah is one and the second is the Prophethood of Mohammad. itis not necessary that a Muslim be so by birth. In fact Islam depends on belief, A man can be Muslim even by profession Or by conversion. According to Shariat if one of the parent is ‘Muslim, the child will be Muslim. However in India it was held in Skinner v. ‘Orde, that the child is presumes o-belong to the religion of the father. The facts of this case are interesting to note. In this ine ene Helen Skinner was married in Christian form to George Skinner. After sre Jeath of her husband the wife cohabited with some other Christian. The Subsequent husband was already married and his first wife was alive. In order to legalize their union, both went through the ceremony of conversion to the Miuskm faith, The Privy Council held that such a marriage was of doubtful validity. In Bhaiya Sher Bahadur v. Bhaiya Ganga Baksh Singh? the Iegitimate son of a Hindu by a Muslim lady, who was brought up as a Hindu and married to a Hindu girl according to Hindu rites, was held to be a Hindu. ‘A person bom as a Muslim continues to be Muslim until he renounces Islam after attaining majority. A Court of law is not concerned with peculiarities in belief, orthodoxy or heterodoxy, so long as the minimum of belief exists. A Moplah woman married a man who after some time become an Ahmadi Moplahs are strict Muslims and this change of doctrine on the part of husband was considered an act of apostasy. According to Islamic law, apostasy on the 2—According to Aghnides a Muslim is one, who "Mohammad as Prophet, or <7 one, who saY® that flis Prophet”, oF #7 one who God and Mohammad. Amir Ali 1 (1922) 45 Mad 986, 2 (1871) 14 MLA. 308. 3.4L LAL Scanned with CamScannerCONCEPTION, ORIGIN AND DEVELOPMENT OF MUSLIM LAW rt of one of the spouses completely severs the marital tie. Consequently, wife Prarried another husband, The wife was Prosecuted for the offence of Peany: ‘The lower Court held that there was a lawful case of conversion and therefore, the marriage tie was severed. The second marriage was perfectly valid. The High Court in revision, however held that conversion to Ahmadism is not an act of apostasy and therefore, the woman had committed bigamy.1|In the case of fiwan_Khan v. Habib,? the Lahore High Court held that people of Shia Community boycott first three Caliphs but they trust in one God and Prophetship of Mohammad, therefore, they too are Muslims.] 9 It is not easy to say whether a person is Muslim or has accepted some other faith circumcision is one of the tests. But it is not final. Particular forms of belief and observance of ceremonial law may be taken into consideration. In order to be treated as a Muslim, a man must profess to be a Muslim. If he has converted into another religion, the conversion must not be bona fide. A conversion with mala fide intention will not be valid. It will be a fraud upon law. 4, Origin of Muslim Law.—The place of Muslim Law’s origin is Arabia where Mohammad promulgated Islam. Basically it is of divine origin, that is to say, Muslim Law originates from divinity. It is that law which is established _b; communication (Khitab) from God with reference to men’s acts, expressive either of nd or indifference on his part or being merely declaratory. The entire system of Muslim Law, as well as of theology, ritual, and private ethics, have been built upon two foundations—the Quran and the ‘Traditions’ (Sunnah and Ahadis). The Pre-Islamic customs are hardly referred to by the Muslim jurists for elucidating the law. The Quran.—The Quran which is the divine communication and revelation to the Prophet of Islam, was the first and the great legislative Code of Islam. “It professes to report verbatim a series of communications made to the Prophet through the angel Gabriel, on a great number of different occasions during the last twenty years of his life and the fiction, is so strictly kept up that he is addressed throughout in the second person”. Practically, Wilson says,“we have in it the emanations of Mohammed’s own brain, under conditions of abnormal strain and excitement, as he concentrated his attention on one after another of the problems that he was called upon to solve”. The view expressed by Wilson does not hold good because the distinction between Quian and Sunnah has been established beyond doubt. Moreover, the language of Quran is almost different from Hadith as spoken in Arab.\ 5. Traditions—‘Sunnah’ and ‘Ahadis’—With the death of the Prophet, the living source of inspiration came to an end. The immediate successors of the Prophet in the religious and secular leadership of Islam had no claim to inspiration, They accepted the “Book of God” as an all sufficient guide for this world. It was reverently remembered, recited, written down, studied and Narantakath v. Parakkal, (1922) 45 Mad 986. (1933) 14 Lahore 518. Abdool Razack v. Aga Mohammed, (1894) 21 LA. 56, 64 Wilson : Anglo-Mohammedan Law, p. 7. Scanned with CamScannerMOHAMMEDAN LAW 10 set ofthe world outside Arabia brought Muslims to face wi obeyed. Te conden’ were solved by a process of “nterprtaton” which in the new probier™ mpanions” who had shared the Prophet's public and private ty. But the companions were able to the case of the i ith peculiar authori was invested wit! Pe ey the Quran with facts from the life ofthe li ‘i fe, icit injunctions I leave with you", sai e Prophet. “1 ith you", said ies of the saying of th id memories O° nich if you follow faithfully, you will never go to mond my practice, Sunnat”. The text of the Quran is one, ted by ail schools of Islam. But there are v texts of the ding t et’s sayings and doings. and_when we of law emerged, each with its own Prophet an‘ the Prophet, astray, the Qura’ iversally a tradition come to their 2pF tinct schools Sh, the Sunnah and Hadis, though sracteristics, Thus after Mohammad’s death, the Sunnah and Hadis, thoug sae ied, his surviving companions in order to decide cted upon by train men from certain actions which the Prophet fot recorded, were a Secasional disputes and to res prohibited. ; ; If there is nothing in the Quran or in the Hadis or Sunnah to answer a particular question, the concurrence of the jurists of a particular age on any question (Jjma) ‘and the dictates of the conscience and reasoning (Qiyas) with certain definite rules have to be followed. 6. ‘Shariat’/—Meaning of.—The word Sharia) face or the path to be followed”. body of Muslim common law known 2s Tne eof Muslim religious law. It embraces in if5 oF it all human Meo tmodern sense, but contains an infallible guide to ethics”? ft 7, Religious injunctions. of religious injunctions under 'Shariat’ and they are » LA Farz, or duties which are st prayers are Farz. ray ertfaram, or acts which are strictly forbidden to the Muslims ¢ Haram. ¥ 3 Mundub, or the things which the Muslims are advised to do eg. additional prayers on Id are mandub. 4: Makruh, or the things about which # eg. certain kinds of figh are makruh: 5. Jaiz, or the things about which Islam is indifferent, eg., travelling on sea or air is Jaiz. 8. Fiqh. Figh is the name given to the whole science of jurisprudence because it implies the exercise of intelligence in deciding a point of law in the absence of a binding command from the Quran or a tradition on the point. Figh literally means “intelligence”. Fyzee defines it as the “knowledge of one’s aon and obligations derived from the Quran or'the Sunna of the Prophet, or le con: ini jr 4 fs come of opinion among the learned (Ijma), or analogical deduction 1, Asaf A.A. Fyzee ; Outlines of Mohammedan Lay 1 At 2. Asaf AA. Fyzee Outlines of Mohammedan Lav, an Ean re is _—There are five kinds rictly enjoined on Muslim e.g. five daily g., wine is he Muslims are advised not to do, Scanned with CamScannerCONCEPTION, ORIGIN AND DEVELOPMENT OF MUSLIM LAW u The classical theory of Figh was formulated as a system first by Imam Shafi. Since its formulation it has been accepted universally by Islamic scholars. During the last century a scientific and critical study was made by the thinkers of this century. Schacht in his book entitled “Origin and Development of Islamic Jurisprudence”! says that the spirit of the law in Islam is religious and ethical. It draws its inspiration from the Quran and the teaching of the Prophet Mohammad. But the content of the law is based upon pre-Islamic customs and usages. in Mecca and Madina trade flourished and a more elaborate system of customary law came to be recognized. This was known as the Sunna of the people. At that time there were no regular courts or judges. The institution “of Gadi was introduced subsequently. Cadis were frequently appointed during the reign of Umayyad period. Prophet did not create a new system of law. He took the existing Sunna and modified the same. The modification was made either by Quran or by the teachings of Prophet. As regards the teaching of Prophet there is no authentic record to show that a particular tradition was developed by Prophet. It is very difficult to say with certainty whether they represent the Prophet's actual words and actions. After the establishment of states, the need for Cadis arose. The hakams were displaced by these officials. ‘The law was however interpreted by some specialist persons who were known as fugaha. These persons endeavoured to reconcile the ancient usage with Islamic teaching. There was thus conflict between prevalent usage and some of the rules laid down by the Prophet and his early companions. The law was studied at three different places ie., in Iraq, Hajaz and Syria. This geographical difference led to different interpretations. The Ilm-ul-Figh is divided into (1) Ilm-ul-Fatawa, ie, the science of decision and (2) the Ilm-ul-Farniz, i.e., the science of law of inheritance. 9. Difference between Shariat and Fiqh.—Firstly, Shariat is a wider viele, embracing in its orbit all human actions, while Figh is the narrower one Gealing with legal acts alone. Secondly, Shariat reminds us of revelation and that knowledge, which no \ére could have possessed except for the Quran or Hadis. In Figh, the power of reasoning, is the chief factor. Thirdly, God and Prophet laid down the path of Shariat while the whole re of Figh is erected by human agency. _/ Fourthly, in Shariat the grades of approval or disapproval are various, VYiwhereas in Figh, an action is legal or illegal, permissible or not permissible. 10. Development of Muslim Law.—The process of the development of Muslim Law may be divided into five pericds and may be discussed under the following period-wise head: (1) The period of Quranic precepts.—This period ranges from 1 to 10 A.H. (i.e, after Hijra or between 622-632 A.D.), From the time of that n emorable flight, which marks the commencement of the Hijra era, the Prophet took the full responsibilities of a temporal sovereign, first over the city of Madina and ultimately over Arabia. 1. (1955) Chap. Il and MI, 2. Mohd. Marmaduke : The Glorious Quran, p. xvi. Scanned with CamScannera MOHAMMEDAN LAW Thus the ‘Hijra’ or ‘flight’ from Mecca marks the ea he Muslin, era, for Mohatiriad (PBUH) rallied his followers anc @kt rts Mecca the battle of Badar (A.D. 623). The ten years of oe ot Prophet’ - H) hag begun. The Hijra makes a clear division in the story phet’s mission gun. The F hen he had been a preacher on" which is evident in the Quran. Till {R00 V7 + of the legal verses ony Thenceforth, he was the ruler of the State. Quran were revealed during this period: The Madinah Sur aii theta, aoe eee cen Sarak The ater Bi¥2S Bidens oe ee socal to the Prophet as wamer, the former gives BY iver and reforment le, law-g ty and to the Prophet as €x@™P” g See lie period, mst of the judicial decisions ‘and traditions of the Propher also came into existence. It is the belief of Muslims that Waki (Inspiration) may be of two kinds — (a) Zahir (manifest), (b) Bal Quran is Zahir wahi, because Hadis is Batin waht, (the actions of the Prophet are called Hadis). Ha indirect. With the death of Prophet t end. : ilafat —This d begins from 10 AH. 2) The period of Orthodox Khilafat—This perioe 2UR : and os with 40 ah (ie. 632 to 661 A.D){The Prophet died without Teaving any son and without. appointing any successor. After his death the question arose as to who would be the successor of the Prophet. This question divided the Muslim community into two groups. One group Was ended by the Prophets Fatima, This group contended that Ali, who was the cousin and son- ae ropet Mohan Fatima, daughter of the Prophet) in-law of Prophet Mohammad (husband of was the rightful successor of the Prophef. The other group, headed by Ayesha (widow of the Prophet and daughter of Abu Bakr) advocated the cause of (ction: Majority of the Muslims agreed that election should be held for the purpose of finding out the successor of the Prophet Accordingly, an election was ped in which Abu Bakr was elected. Thus, Abu Bakr became the first Khalifa or Caliph, He died in 634 A.D. and then Omar was elected as the second Caliph, Omar was assassinated in 644 A.D. After him Osman became the third Caliph through election. He was, also assassinated in 656 A.D. Ali was then clected as the fourth Caliph, According to the Shias, Ali was the first caliph and Abu Bakr, Omar and Osman were not rightful successors, they were merely usurpers. Ali was assassinated in 661 A.D. After the death of the Prophet, his first four successors (called “Khulafai-Rashidin” or “the Just Khalifa’) carried on the Government of the Muslim Empire in much the same manner as, the Prophet had done The earlier Khalifas were at the same time actively an avon assisted by an advisory council of the Ashab (companions) of the rophet, who could well claim it to be repositories of thoughts, and ideals of the Prophet. This period ended with the assassination of Ali the fourth Kaif followed by the accession of Muavia (40. A.H.) and the beginning of he Ummayyad Dynasty (as the defendants of Muavia were called). This tin (implied). Quran is written in the very words of God, sayings, teachings and judicial decisions a yvew also inspired but inspiration was he direct source of inspiration came to an 1. Mohd. Marmaduke : Op. cit, p. xvi Scanned with CamScanner‘CONCEPTION, ORIGIN AND DEVELOPMENT OF MUSLIM LAW. 13 period is also called the period of Sunnah because close adherence was kept to the conduct and sayings of the Prophet. A collection of the whole Quran was made and put in writing under the third Caliaph Osman during this period. (3) Period of theoretical study and collection—This period ranges from 40 A. H, to the 300 A. H. During this period, in the reign of the ‘Ummayyads’ the full possibilities of the traditions as a source of law began to be realised. The articles of Law, or in other terms, the “Commandments and Prohibition of God” says ‘Iban Kheldun’ “were then bome (not in books but) in hearts of men, who knew that these maxims drew their origin from the books of God and from the doings and sayings of the Prophet.” Under the circumstances, the Traditions very soon increased to such an extent that it became not only advisable but also necessary, to make collections of them, and to separate those which were authentic, from those which were of doubtful authority.’ Bukhari’s compilations were recognised as authoritative Ahadis. It was only during 99- 101 A.H. that Abu-lbn-Shurab-az-zuhri (who died in 120 A.H.) made the first known collection of the Traditions. Abdul Malik Ibn Juraiji made another collection at about the same time. These collections were however arranged not according to subjects with which they dealt with but according to the name of the companions relating them, and were thus called Masnads.? It is not till the appearance of the Muwatta of Malik Ibn Anas (who died in 179 A.H.) that we get a Musannaf, i.e., a collection of Traditions arranged and classified according to subjects. This book has been called the first great Corpus of Mohammedan Law In the year 127 A.H. Marwan, the Ummayyad Khalifa, was defeated and dethroned and the Empire fell into the hands of Abdul Abbas-As-Saffah, the first of the Abbaside Khalifas of Baghdad. Learned men of Islam congregated in the Court of the Abbasides from all corners of the Muslim world and studied Islamic Jurisprudence. During the earlier part of this period there appeared four schools of Sunni law. (a) Hanafi School :—This school was named after Imam Abu Hanifa (669- 767 A.D,). It is the most liberal of the four schools because this school relied on the principles of Qiyas or analogical deductions. A number of scholars think that Imam-Abu-Hanifa was the founder of Qiyas; this is not correct. Imam- Abu-Hanifa used Qiyas because the knowledge of Hadis had developed insufficiently by that time. (b) Maliki School—This school was also named after its founder, Malik-Ibn-Anas (713-795 A.D.). This school does not accept Qiyas as source of law and gives importance to the Traditions of the Prophet and Ima as sources of law. (c) Shafi School.—The founder of this School was Mohammad-ash-Shafi (767-820 A.D.). Shafi was one of the greatest jurists of Islam and the creator of the classical theory of Islamic jurisprudence. Shafi perfected the doctrine of Ima and founded the Science of usul. 1, The Mohammedan Law by S.C. Sircar, p. 8. 2. It means attributed to or related or alleged (on the authority of other). 3. Literary History of the Arabs by Nicholson, p. 337. Scanned with CamScannerJ (d) Hanbali School.—This School was founded by Imam A Hanbal (780-855 A.D.) Hanbal strictly adhered to the principle of fol fon the Hadis literally. Owing (4) Period of evolution of Ijtihad and Taglid.—This period begins wi establishment of the four oo Schools (that is from the third century Hijra) and extends upto 1924 A.D. After the four great Imams, namely, a Hanifa, Malik bn Anas, Mohammed Ash-Shafi and Ibn Hanbal, the learmeq jurists of Islamic law continued the process of interpretation. During this pe inl there emerged two parallel doctrines, namely, the [jtihad and Taglid. (The word ljtihad means ‘labouring hard’ or ‘studying intensely to arrive at a s opinion or judgment”, The persons, who were doing this were known ay e authority of the Majtahid is not Mujtahi must, however, be noted that the ° based on his holding any office in the State, but it is derived purely from the learning and reputation of the individual. The power of forming one’s own, opinion (Ijtihad) was; however, cut down by the parallel doctrine of Taglid person without knowledge of which connotes “following the opinion of another the authority for such opinion.” This doctrine grew because a man in the street being ignorant could not be expected to be learned in the rule of Shariat and consequently he was asked to follow the opinions of those who knew it.! During this period, the growth and development of law was stopped. No jurist was ever afterwards recognized as having the same rank as the founder himself, The classification of the lawyers of this period is very elaborate; seven different grades are recognized, beginning from the Imams as founders down to the ordinary juris consult or mufti. (8) The Fifth Period (1924 A. D. to the present day)—This period may be D., the Caliphate_was abolished. Therefore, called Modern Period. In 1924 A. since 1924 A. D. there has been no Caliph who in his capacity of religious head can execute and enforce Shariat (Muslim’s religious law). Shariat has now become merely a moral and religious code of conduct and has lost its juristic sanction. In modern Islamic countries like Tunisia, Turkey, Egypt, etc., the laws have been codified in such a manner that they should fulfil the needs of modern society without losing the inherent character of Shariat. M4 MOHAMMEDAN LAW 1. Wilson, R.K. ; Anglo-Mohammedan Law (6th ed), p. 23. 2, Abdur Rahim : Mohammedan Jurisprudence, p. 168. Scanned with CamScanner