Following notes on Pre-Islamic traditions have been taken from Principles of Mahomedan law By D.F Mulla.
The Islamic legal system, as is well known, had its origin in Arabia, and has been developed by Arab jurists, and we should, therefore, naturally expect to find on it the impress of Arabia’s social history and of the Arab mind and character.
The Muhammadan Code, in fact, includes many rules of pre-Islamic customary law which have been embodied in it by express or implied recognition.
CUSTOMS AND USAGES OF THE ARABS BEFORE ISLAM
The Arabs were divided into tribes and sub-tribes, and these latter again into families.
Each tribe elected its own chief.
Within the limits of his tribe his orders and decisions were enforced not by any fixed machinery at his disposal.
What happened in the case of an offence committed by a member of one tribe against a member of another tribe?
If a member of one tribe killed a member of another tribe, no distinction being made whether it was wilful or otherwise, the heirs or chief of the tribe of the deceased were entitled to demand that the offender should be given up to them to suffer death. But the matter might be compounded by Payment of a fine or compensation amounting to a hundred camels. If the two tribes happened to be, at amity (Peace) with each other, and the person accused denied the charge, then, on a number of men belonging to his tribe pledging their oaths to his innocence, the matter would be dropped.
Oaths
Oaths formed an important part of the procedure in settling a dispute.
An oath was held in great reverence, not merely as an inducement to speak the truth, but was regarded in the nature of an ordeal finally settling the dispute.
Much solemnity was attached to the ceremony of administering it and a place called Hatim was set apart just outside the Ka’ba for this purpose.
Punishment of Retaliation
The principle of punishment for all crimes against one Person was retaliation commutable to a payment of blood-money or compensation for the injury.
If the injury resulted in death, the loss caused was regarded as a loss to the tribe or family of the deceased, and it was their right to demand satisfaction from the tribe or the family of the offender.
If a member of an inferior tribe killed a member of a nobler tribe, the latter would exact the blood of two men in lieu of one, of a male in lieu of a female, of a freeman in the place of a slave.
Other among forms of punishment
Other forms of punishment that prevailed among the Arabs, it appears that they used to cut off the right hand of the thief.
Among the Jews of Madina an adulterer used to be stoned to death if he was poor, but latterly they punished the adulterer, rich or poor, by blackening his face and flogging (Whipping) him.
Customs of Marriage
It is narrated that there were four kinds of marriage in vogue at the time when the Islamic laws came into force.
A form of marriage which has been sanctioned (approved) by Islam, namely, a man asks another for the hand of the latter’s ward or daughter, and then marries her by giving her a dower.
Dower formed a part of the marriage contract, but in some cases the guardian of the girl used to take the dower himself.
Whether such an appropriation was a mere violation of the ordinary usage, or whether it showed that dower was originally the price paid for the bride to her parents, and that the payment to her was but a later development, can only be a mere matter of conjecture (guess).
A device used at times to be resorted to under the name of Shighar marriage in order to deprive the wife of her dower. A man would give his daughter or sister in marriage to another in consideration of the latter giving his daughter or sister in marriage to the former. In such a form of marriage neither of the wives would get a dower.
Woman not a free agent of marriage
Before Islam a woman was not a free agent in contracting marriage.
It was the right of her father, brother, cousin or any other male guardian to give her in marriage, whether she was old or young, widow or virgin to whomsoever he chose.
No restriction on the number of wives
There was no restriction as to the number of wives an Arab could take.
Divorce
Unrestrained as an Arab was in the number of his wives, he was likewise absolutely free to release himself from the marital tie.
The word commonly used for this purpose was talaq.
It depended upon his discretion (will) whether he would dissolve the marriage absolutely and thus set the woman free to marry again or not.
He might, if he so chose, revoke (cancel) the divorce and resume marital connexion.
Khula
The wife among the Arabs had no corresponding right to release herself from the bond of marriage.
But her parents by a friendly arrangement with the husband could obtain a separation by returning the dower if it had been paid or by agreeing to forgo it if not paid.
Such an arrangement was called khula’ and by it the marriage tie would be absolutely dissolved.
Effect of divorce ‘Iddat
A woman if absolutely separated by talaq, zihar, ila’ or khul might remarry, but she could not do so until some time, called the period of ‘iddat (isic), had elapsed.
On the death of the husband the period of ‘iddat was one year.
Female Infanticide
In proportion to his eagerness to have a son, an Arab father regarded the birth of a daughter as a calamity (disaster), partly at least because of the degraded status of women.
Even in the time of the Prophet female infanticide was prevalent, and many fathers used to bury their daughters alive as soon as born.
Property
Camels, cattle, tents, clothes and a few utensils usually composed the bulk of his possessions.
Slaves were a common and valuable form of property.
Proprietorship was individual, and the principle of a joint family, with reference to the holding of property, was unknown.
No distinction was made between ancestral and self-acquired moveable and immoveable property.
Except the places of worship there was hardly any public property.
Though a woman was debarred (excluded) from inheriting, she was under no disability in the matter of owning property. Anything that she might receive from her husband as dower or by gift from him or her parents and relatives was absolutely hers.
Different kinds of sale or Principles of transfer of Property:
- Sale of goods for goods (Muqayada), being an exchange or barter.
- Sale of goods for money (Bai’) a form of sale commonly in use.
- Sale of money for money (Sarf), or moneychanging.
- Sale in which the price was paid in advance, the article to be delivered on a future date : this sale was called Salam.
- Sale with an option to revoke.
- An absolute or irrevocable sale.
- Sale of goods, the price to be paid in future.
- Murabaha, a transaction in which the vendor sells the article for the cost price and certain stated profits.
- At-Tauwaliya, sale at the cost price.
- Wadi’ ,sale at less than cost price.
- Musawama, sale by bargaining.
- Sale by throwing a stone.
- Muzabana sale of dates on a tree in consideration for plucked dates.
Loans riba or usury
The Arabs used to lend out money on interest, and at least among the Jews of Madina usury (Moneylending) was rampant (widespread) under the name of riba.
Succession or Inheritance:
On the death of an Arab his possessions devolved on his male heirs capable of bearing arms, all females and minors being excluded.
The shares of the different heirs in the heritable estate were not fixed, and it is not easy to ascertain what was the order of succession among them, if any.
It appears that the chief of a tribe used to divide the estate of a deceased person among the recognized heirs, and possibly the shares allotted varied according to the circumstances.
If there were grown-up sons they probably excluded daughters; wives, sisters
For complete Muslim Law notes click here.
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