islamic law notes Archives

Contracts in Islam

Following notes on Contracts in Islam have been taken from Principles of Mahomedan law By D.F Mulla.

From Mu’az bin Jabal, he narrated that Rasulullah SAW said:

Surely the best work is the work of traders who; when they speak never lie and when given trust never betray and when promising never break and when buying never denounce and when selling never exaggerate and when performing obligations never delay and when deserve for anything never put in hardship.

(Narrated by al-Baihaqi)

Muammalat

Generally Islam permits trade and commerce and the contracts that are applied thereto are termed muamalat in the Shariah.

Muamalat are civil contracts and all civil contracts can be used in Islamic banking and finance.

Types of Contracts

Wa’d – Unilateral Promise

One party binds itself to perform a function for another

Does not normally create legal obligation

Legal obligation is created:

Genuine need of the masses

Contingent promise

Muwaa‘adah – Bilateral Promise

Two parties performing two unilateral promises on the same subject

Use of two unilateral promises can lead to a forward contract, which is impermissible

Not allowed and non–enforceable according to majority (AAOIFI, IFA and others)

Some Hanafi/subcontinent scholars allow it provided no other prohibition (excessive gharar or short selling)

‘Aqd – Contract

Promises do not constitute contracts

Aqd

‘Aqd literally means ‘to bind’.

3 types of contracts in Shariah

Mu’aawadha – (Consideration)

Void conditions and gharar void the contract

E.g., sale, purchase, lease, wakala

Tabarru‘ – (Gift/Loan) (gratuitous) – proprietary transfer without consideration

Void conditions are void themselves and gharar is tolerated

E.g., gift, bequest, waqf, kafala, ‘aariya, qardh, hawala

Dhimniyya – (Supplemental Contracts)

Validity of Contracts:

Validity depends on:

Legality/illegality of the subject matter
Existence and precise determination of the subject matter
Delivery or deliverability of the subject matter
Absence of excessive uncertainty
Precise determination of consideration (price)

Valid (Sahih) contract

is legal both in its asl – fundamentals [rukn (offer and acceptance) and object] and wasf – ancillary components

Ancillary components are those that are in addition to rukn and object e.g., a condition that violates the nature of the contract or if the object is not deliverable

Contract is concluded and exchange of ownership takes effect

Void (Batil) contract

rukn and conditions on the object are not satisfied or that is illegal in both rukn and ancillary characteristics

Contract is not concluded and exchange of ownership does not take effect

Voidable (Fasid) contract

legal in its asl (has all the elements of a contract) but is not legal in its wasf – ancillary component

Contract is concluded and ownership is realised upon possession

Riba and gharar are causes of irregularity according to Hanafis and invalidity according to other schools.

Gharar can be defined as:

‘uncertainty that is present in the basic elements of an agreement eg wording, subject matter, consideration and the liabilities’

Other Ulama have defined Gharar as that level of uncertainty which can lead to disputes. Hence if a contract has uncertainty which is insufficient to lead to dispute then the contract is valid in the eyes of this group of Ulama.

For complete Muslim Law notes click here.

Crimes and Punishments

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Following notes on Crimes and Punishments in Muslim Law have been taken from Principles of Mahomedan law By D.F Mulla.

When certain primary public rights are violated the wrong is called maa’si’at, that is, crime or offence; and it gives rise to certain substitutory public rights in the form of uq’bat or punishments.

Types of Punishments

Punishments are divided into two classes : one of which is called hadd (Jo-) and the other taa’zfr.

Hadd means measure, limit, and, in law, it means a punishment, the measure of which has been definitely fixed.

In taa’zir, on the other hand, the Court is allowed discretion both as to the form in which such punishment is to be inflicted and its measure.

Hadd

Hadd used to be prevalent in Arabia at the time of the promulgation of Islam, and the Muhammadan law, while confirming it as the extreme punishment for certain crimes, has laid down conditions of a stringent nature under which such punishments may be inflicted.

These rules are so strict and inflexible that it must be only in rare cases that the infliction of hadd as of retaliation would be possible, and, in fact, there are only a few instances known in which hadd has been inflicted.

Punishments by way of Hadd

Punishments by way of hadd are of the following forms: Death by stoning, amputation of a limb or limbs, flogging by hundred or eighty strikes. They are prescribed respectively for the following offences: Whoredom, theft, high-way robbery, drunkenness, and slander imputing unchastity.

Limitations and Conditions in Hadd

The principle underlying is that any doubt would be sufficient to prevent the imposition of hadd.

For instance, such doubt may arise from the nature of the authority applicable to the facts of a particular case or from the character of the evidence or from the state of mind of the accused person, that is, his knowledge of the law or facts, or the state of his will at the time of commission of the offence charged against him.

I may mention that the policy of law in connection with this offence is to punish only those offenders who defy public decency and openly flaunt their vices.

Hence it is, that four male eyewitnesses are required for its proof.

Taa’zir

Taa’zir may be inflicted for offences against human life and body, property, public peace and tranquility, decency, morals, religion and so on ; in fact the entire criminal law of the Muhammadans (as-siasat ush-shara’i) as prevalent at the present day is based on the principle of taa’zir.

The nature of the sentence to be inflicted by way of taa’zir for particular kinds of offences may be regulated by the head of the State who has absolute discretion in the matter.

The objects of taa’zir are the correction of the offender and the prevention of the recurrence of the crime, and it is left to the discretion of the Magistrate to determine, in view of the circumstances of each case, the sentence by which the objects of the law would best be achieved.

He is to take into account in awarding punishment, the nature of the offence and the circumstances under which it was committed, the previous character and the position in life of the offender and so on.

The range of this form of punishment extends from mere warning to fines, corporal chastisement, imprisonment and transportation.

For complete Muslim Law notes click here.

Family Law

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Following notes on Family Law have been taken from Principles of Mahomedan law By D.F Mulla.

Conception of Marriage

THE central idea in the family law of the Muhammadans is the institution of nikah or marriage.

How marriage is contracted

A marriage like any other contract is constituted by proposal and acceptance and does not depend for its validity upon the observance of any religious rite or ceremony.

But, according to the Hanafis, the proposal and acceptance must, in a contract of marriage, be witnessed by two properly qualified witnesses otherwise the marriage would be invalid.

According to the Malikis the presence of witnesses is required only for the sake of publicity.

Guardianship for the purpose of Marriage

Guardianship for purposes of marriage is allowed because of necessity, for a proper and suitable match may not always be available.

It is extended by the Hanafis to the father and grandfather and other relatives; among the latter the order of priority is the same as that in respect of their right to inherit.

But when a minor is given in marriage by a guardian other than the father or the grandfather, he or she can, in the exercise of what is called the option of puberty refuse to be bound by the marriage and ask the Court to pass a decree annulling the marriage.

This absolute option does not exist in the case of a marriage contracted by the father or the grandfather in whose favour the law rises a presumption that they must have acted in the best interests of the minor.

The Malikis would confine the right of matrimonial guardianship to the father, whose right is expressly recognized by a tradition and the Shafi’is would also recognize the right of the grandfather by giving an extended application to the words of that text.

According to the Shafi’is, if a minor girl is married by the father to a person who is not her equal it will be invalid according to some jurists and according to other Shafi’i jurists she will have the option to get rid of the marriage on attaining majority.

Unequal Marriages

The law confers on certain relatives of a female of the age of majority to object to a marriage contracted by her with a man who is not her equal.

Equality is generally had in regard with reference to the following matter- : (1) lineage, (2) character, (3) property, (4) profession, (5) status, such as of a freeman, a freedman or a slave and perhaps (6) education.

Conjugal Rights

Marriage confers important rights both on the husband and the wife against each other, subject to any especial stipulations which the parties might have entered into at the time of marriage or afterwards.

Husband can control her freedom of movement within certain limits and correct her for unseemly behaviour. This restriction upon her liberty is, however, measured by the necessities of his own right. He cannot, therefore, refuse to afford her opportunity to see her relatives.

The exercise of most of his rights by the husband will be suspended if he does not satisfy the corresponding rights of the wife. Similarly, if he treats her with such cruelty as to endanger her personal safety she will not be bound to live with him. The husband has also the right, as we have seen, to dissolve the marriage at his discretion.

Right to wife’s Property

Under the Muhammadan law the husband does not acquire any right to or control over his wife’s property by the fact of marriage. Whatever property she had at the time of marriage remains absolutely her own and at her disposal and she is under no disability to acquire property by reason of coverture.

Mahr or Dower

Mahr or dower as it is usually translated is either a sum of money or other form of property to which the wife becomes entitled by marriage.

It is not a consideration proceeding from the husband for the contract of marriage, but it is an obligation imposed by the law on the husband as a mark of respect for the wife as is evident from the fact that the non-specification of dower at the time of marriage does not affect the validity of the marriage.

She or her guardian may stipulate at the time of marriage for any sum however large as dower. If no sum has been specified she is entitled to her proper dower (mahru’l-mithl), that is the dower which is customarily fixed for the females of her family.

In case of dissolution of marriage by the husband or of separation for some cause imputable to the husband before there has been consummation or valid retirement, the wife becomes entitled to half the specified dower and if no dower has been specified to a present called muta’t.

In case the separation was due to some cause imputable to the wife herself, she will not be entitled to any dower or present if there has been no consummation of the marriage.

If a marriage has been annulled on the ground of invalidity, the wife will not be entitled to more than her proper dower.

Time for Payment of Dower

Having regard to the time when it becomes payable dower may be mua’jjal, that is, immediately exigible or prompt, or muajjal that is, deferred.

Even during the subsistence of the marriage the wife is entitled to demand so much of her dower as is exigible, but she is not entitled during the continuance of the marriage to demand the deferred portion of the dower.

Dissolution of Marriage

The law as we have seen concedes to the husband the right to dissolve the marriage. He can, therefore, put an end to the marriage at his uncontrolled option and the wife may do the same if the husband has conferred such a power upon her.

Divorce

The dissolution of marriage by the husband’s own act, that is, by his making a declaration to that effect in appropriate words is called talaq , which is usually translated as repudiation, divorce.

Talaq or divorce is strongly condemned by the Muhammadan religion and it should not be resorted to unless it has become impossible for the parties to live together in peace and harmony, but once it is pronounced it is upheld as valid, although there may be no good cause for it.

It is described in a precept of the Prophet as the worst of all the things which the law permits.

There are certain limitations imposed by the law upon the right of the husband to dissolve the marriage.

The object of these rules is to ensure that the husband was not acting in haste or anger and that separation became inevitable in the interests of the husband and the wife and their children.

Dissolution of Marriage by Wife

The husband, as I have said, may confer on the wife the power of pronouncing talaq, and thereby dissolving the marriage.

Once he has conferred such power, he cannot afterwards revoke it and it will depend upon the wife whether to exercise the power or not. Such conferment of power is called tafwid or delegation.

Khula

If the husband confers the power of dissolving the marriage on the wife in exchange for money or property, it is called khula’ or mubarat, that is, mutual release.

Separation

Apart from the dissolution of marriage by the husband or by the wife in exercise of the authority derived from him, the law allows of a marriage being dissolved in certain cases by a decree of the Court. It is called furqat , literally separation.

If a decree of separation be for a cause imputable to the husband, it has, generally speaking, the effect of a talaq.

If the decree for separation be for a cause imputable to the wife, then it will have the effect of fas’kh or annulment of marriage.

In connection with the law of divorce it should be pointed out in fairness to the jurists that the wide interpretation which they have given to the traditions bearing on the subject was evidently influenced by their anxiety to avoid the evil of the pre-Islamic customs which empowered the husband to divorce the wife as often as he chose, which had the effect of depriving the wife of her conjugal rights, without setting her free from the matrimonial ties of a man who had ceased to regard her with affection and respect. The rules enunciated by the jurists have undoubtedly been effective in preventing the power of repudiation being used merely for purposes of oppression, but it may well be said that they have made divorce too easy.

Iddat

‘Iddat literally means counting and in law it means the time during which the wife must wait after the cessation of marriage before she can marry again.

‘Iddat has been ordained with a view to ascertain correctly the paternity of the child that may be born to the wife after the termination of the marriage.

The period of probation for a woman, who has been divorced, is according to the Hanafis the period covered by three menstrual courses and according to the Shafi’is and Malikis the period covered by three intervals and in the case of an old woman or of a girl of immature age it is three months.

‘Iddat of a widow is four months and ten days, of a pregnant woman whether divorced or a widow the period of probation does not end until delivery.

Until ‘iddat is over the woman cannot marry again and she has a right to reside in her former husband’s house and if she was divorced to be maintained by him.

Inheritance

The death of a person brings about a transfer of most of his rights and obligations to persons who are called his heirs and representatives.

What is left after the last needs of the deceased have been satisfied, namely, after the payment of his funeral expenses and the discharge of his obligations and debts is to be distributed according to the law of inheritance.

The rules regulating inheritance in the Muhammadan system are based on the principle that the property which belonged to the deceased should devolve on those who by reason of consanguinity or affinity have the strongest claim to be benefited by it and in ‘proportion to the strength of such claim.

Different classes of heirs and sharers

Of the heirs there are some whose shares or portions have been fixed in the Qur’an. These are called Ashabu’l-fara’id or ‘ sharers ‘ as commonly translated.

They are altogether twelve in number, four males and eight females : father, father’s father how high soever, half-brother by the mother, the husband, the wife, daughter, son’s daughter how low soever, full sister, consanguine sister, uterine sister, mother and true grandmother, that is, grandmother in whose line of relationship to the deceased no false grandfather intervenes.

The shares of the ‘ sharers ‘ in the inheritance are either one-half, one-fourth, one-eighth, two-thirds, one third, or one-sixth.

The husband has one-fourth when there is a child or son’s child how low soever and one-half when there is no child or son’s child.

The wife has one-eighth when there is a child or son’s child and one-fourth when not.

The daughter’s share is one-half when only one and no son, and if there are two or more daughters and no son, they take two thirds between them.

The son’s daughter takes one-half if only one and there is no child or son’s son ; if there are two or more son’s daughters they take two-thirds when there is no child or son’s son, and the son’s daughter takes one-sixth when there is one daughter or a higher son’s daughter and no son.

The sister takes one-half when only one and there is no son or son’s son how low soever, father, daughter, son’s daughter or brother and if there are two or more sisters, they take two-thirds under the same circumstances.

The consanguine sister takes one-half when only one and there is no son, consanguine brother or sister, if there are two or more consanguine sisters under the same circumstances they take two-thirds and the consanguine sister takes one-sixth when there is one full sister but no son, etc., or consanguine brother.

The mother’s share is one-sixth when there is a child or son’s child or two or more brothers or sisters and one-third when not, but she takes one-third only of the remainder after deducting the wife’s or the husband’s share when there is wife or husband and the father.

The true grandmother has one-sixth when she is not excluded; the father takes one-sixth; the grandfather’s share is one-sixth when he is not excluded and the uterine brother or sister gets one-sixth when only one and no child or son’s child, father or true grandfather, and if there are two or more of them they will get two-thirds in the same circumstances.

Residuaries

The next class of heirs are called ‘asba (<w^c) which is ordinarily translated as ‘ residuaries ‘, because they take the residue after such of the sharers as are not excluded have been satisfied.

Distant Kindred

The next class of heirs are known as (dhaui’l-arham) or distant kindred.

They include all relations who are neither sharers nor residuaries; they inherit only if there are no sharers or residuaries.

Shafi’is and Malikis, however, do not include such relations in the category of heirs at all.

Exclusion

Then in order to regulate the number of relations who might inherit together the doctrine known as that of exclusion (hujub) is applied.

There are some persons, however, who are never totally excluded; the son, the father, the husband, the daughter, the mother and the wife.

For complete Muslim Law notes click here.

Istihsan or Juristic Equity

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Following notes on Istihsan have been taken from Principles of Mahomedan law By D.F Mulla.

The doctrine by which a jurist is enabled to get over a deduction of analogy, either because it is opposed to a text or consensus of opinion, or is such that his better judgement does not approve of it, is technically called Istihsan.

Istihsan literally, preferring or considering a thing to be good) which I have translated juristic preference or equity.

The term Istihsan is used by the Hanafi lawyers alone, and so much of the doctrine itself which authorizes a jurist to rely on his private judgement, instead of following a rule resting on analogy, is also confined to the Hanafi system.

It has largely helped to develop the Hanafi system, the founder of which deserves the credit of having been the first to recognize that a strict adherence to analogy would deprive law of that elasticity and adaptability which alone make it the handmaid of justice.

The principle of Istihsan evoked strong comments and opposition from jurists of the other Sunni Schools, and Shafi’i is reported to have said : ‘ whoever resorts to Istihsan makes laws.’

Different kinds of juristic equity as opposed to kinds of analogical deduction

Laws based on juristic equity are divided by some lawyers into two classes : (a) those that carry conviction to the mind of a jurist as being sound, and (b) those that appear at the first glance to be sound, but do not produce such conviction in the mind of different the jurist. In juxtaposition to this classification of juristic equity law, analogical deductions are similarly classified into (1) those that are weak and (2) those which at the first glance appear to be unsound, but are found on further examination to be correct. When opposed to each other (a) is to be preferred to (1) and (2) to (b).

Application of Juristic equity:

The doctrine is chiefly resorted to, in cases arising out of the complex conditions of a growing society where a strict adherence to analogy would fail to meet the wants of the people.

It will also be remembered that it is on the strength of this principle that the Hanafi doctors abandon a rule of analogy in favour of a different rule sanctioned by custom as being more acceptable to the people.

Public Doctrine of Public Good

Imam Malik sanctioned a doctrine somewhat similar to juristic equity or preference. He would allow a deduction of law to be based on general considerations of the public good (masalihu’l-mursala wa’1-istislah) and Imamu’l-Haramain also held a similar view.

Ijtihad and Taqlid

Is further juristic exposition and development of the Muhammadan Law precluded

With reference to the sources of law, it is a matter of considerable importance that we should consider the question whether further juristic exposition and development of the Muhammadan law is inconsistent with the principles of the system.

For complete Muslim Law notes click here.

Qiyas

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Following notes on Qiyas have been taken from Principles of Mahomedan law By D.F Mulla.

Customs and Usages

Those customs and usages of the people of Arabia, which were not expressly repealed during the life-time of the Prophet, are held to have been sanctioned by the Lawgiver by His silence.

Customs generally as a source of laws are spoken of as having the force of Ijma’, and their validity is based on the same texts as the validity of the latter.

It must not, however, be opposed to a clear text of the Qur’an or of an authentic tradition.

The Hanafi writers on jurisprudence include custom as a source of law, under the principle of Istihsan or juristic preference.

Custom properly so called should be distinguished from the usage of a particular trade or business. The latter from its very nature need not be prevalent among the people generally.

Custom which is recognized as having the force of law must be generally prevalent in a country. The practice of a few individuals or of a limited class of men will not, however, be recognized.

Nor would a usage have the force of law, so long as it is confined to a particular locality, such as a village, or a town, and has not found general vogue in the country in which the question arises.

JURISTIC DEDUCTION

Analogy (Qiyas):

Analogy: its definition

All the four Schools of Jurisprudence agree that, in matters which have not been provided for by a Qur’anic or traditionary text, nor determined by consensus of opinion, the law may be deduced from what has been laid down by any of these three authorities, by the use of Qiyas, which is generally translated as analogy.

The root meaning of the word Qiyas is ‘ measuring ‘, ‘ accord ‘, equality ‘.

In plain language Qiyas is a process of deduction by which the law of a text is applied to cases which, though not covered by the language, are governed by the reason of the text. The reason of the text, which is technically called ‘illat or effective cause, is the rukn i.e. constituent of analogy and the extension of the law of the text to which the process is applied is its legal effect (hukm).

Scope of Analogy:

By means of interpretation properly so-called a text is applied to cases covered by its language, while the function “of analogy is to extend the law of the text, to cases not falling within the purview of its terms.

The writers on jurisprudence do not admit that extension of law by process of analogy amounts to establishing a new rule of law. On the other hand, their theory is that analogy merely helps us to discover the law and not to establish a new law.

The nature of its authority as Source of Law

Rules of law analogically deduced do not rank so high as authority, as those laid down by a text of the Qur’an, or Hadith, or by consensus of opinion.

The reason is that with respect to analogical deductions one cannot be certain that they are what the Lawgiver intended, such deductions resting as they do upon the application of human reason which is always liable to err.

In fact it is a maxim of the Sunni jurisprudence that a jurist may be right or may be wrong.

Arguments against Analogy

The Zahiris, some Hanbalis and Ibn Hazm deny the authority of analogy as a valid source of laws, except in matters which are the rights of men (e.g. appraising the value of property destroyed by a trespasser), and are ascertainable by the exercise of our senses and reason.

They contend that any other view of analogy would virtually amount to making laws which is the sole privilege of God.

In support of their contention they rely upon the following texts:

‘We (that is, God speaking through the Prophet) have sent down the Book as authority for you.’

‘There is nothing fresh nor dry, but is to be found (that is, the rule in every matter is laid down) in the revealed book.’

‘Say, “Whatever is not found to be forbidden in the Book of God is lawful to men “.’

Say, (God asks the Prophet to say to his audience), ” God has not by his revelations made anything unlawful to man except a dead body or the flowing blood of an animal “.’

“The affairs of the Israelites were in proper order, until those born of slave girls increased in numbers, and began to deduce from what had been laid down things which had never been laid down, and thus they themselves went astray and led others astray.’

Arguments in support of Analogy

The arguments based on the above texts are thus met.

It is admitted by the Sunni jurists with reference to the first two texts that the law for the guidance of Muslims in every matter is to be found in the Qur’an, but they point out that the law on some questions alone has been laid down in express terms, and, as regards the rest, the Qur’an merely affords indications from which inferences have to be drawn.

As to the warning contained in the last mentioned text against the example of the Israelites, that was called for by the ignorance and prejudice of those addressed but no such charge can be made against Muhammadan jurists as a body.

The Sunnis, on the other hand, rely upon the authority of the following texts in support of analogy:

“Did you think they would get away ? They thought that their forts would protect them, but His punishment reached them from a quarter they had not anticipated. He inspired fear in their hearts, and they pulled down their houses with their own hands, and so did the Muslims. So ye who have judgement take warning.’

The first text which is of the Qur’an is interpreted as showing that the Muslims are asked by God to infer analogically from the example of the Israelites that disobedience of God through insolent pride would not escape punishment.

When the Prophet sent Mu’adh to Yemen (as Governor), he said to him : ‘ how are you going to (decide cases) ‘; Mu’adh answered : ‘ by (the light of) what is in the Book of God ‘. The Prophet next asked : ‘ And if you do not find anything in the Qur’an to guide you?’ ‘I will decide in the way the Prophet has been doing.’ But inquired the Prophet : ‘ If you do not find any precedent from me, what then ? ‘ ‘I will do my best by exercising my judgement.’ The Prophet thereupon exclaimed ‘ Praise be to God who has so disposed the delegate of His Prophet as to be able to satisfy him.’

The second is a well-known tradition and furnishes a general authority for the use of human reason and experience in developing and applying the law of the Qur’an. It is especially relied on as a justification for analogical deduction as a source of laws.

Furthermore, it is urged that the Prophet himself relied on analogy in determining questions of law. For instance, he was once asked by a man whose father, though possessed of means, had died without performing the pilgrimage, if it was necessary that it should be performed on behalf of the deceased for the benefit of his soul. The Prophet replied : ‘ What do you think you would do if your father died owing a debt ? ‘ Here, the argument is that the Prophet used the analogy of a debt to show that an undischarged religious obligation of the nature of pilgrimage should be discharged by the heirs of a deceased person.

Conditions of Analogical Deductions:

The law enunciated in the text to which analogy is sought to be applied must not have been intended to be confined to a particular state of facts.

For example, the tradition, in which the Prophet says :’ If Khuzaima testifies for any one that is sufficient for him ‘, does not lay down a rule of general applicability to the effect that testimony of a single witness is sufficient in law to support a claim. On the other hand, the injunction had reference to Khuzaima personally.

Those verses of the Qur’an which relate exclusively to the Prophet are other instances where analogy is inapplicable.

The law of the text must not be such that its raison d’etre cannot be understood by human intelligence nor must it be in the nature of an exception to some general rule.

Examples: The reason why a certain proportion of a man’s property is fixed for the poor-rate (zakat) or why certain classes of heirs are allotted particular portions in the inheritance, such as one-fourth to the husband, one-eighth to the wife and the like, is incapable of ascertainment, and hence no argument can be built upon such cases for extension of the law in similar instances.

An analogical deduction may be founded according to the Hanafis and the Malikis on the law established either by a text of the Qur’an or Hadith, which has not been repealed, or by a unanimous decision of the learned, and according to some Shafi’is and the Hanbalis it may also be based on another analogical deduction.

The reason why the Hanafis and the Malikis do not allow an analogical deduction to be made from another such deduction is thus stated, either the effective cause on which the second deduction is sought to be based is the same as of the original text in which case it becomes superfluous to refer to the intermediate proposition, or it is not. If the latter, then the first deduction would itself be bad. The following is an illustration. The Shafi’is hold that the quality of edibility is sufficient to bring an article of which it is predicable within the doctrine of riba, which forbids excess in favour of one of the parties to a sale of similars for similars. He argues that quinces being edible come within the principle like apples, which fall within the analogy’ of wheat which is expressly mentioned in the text. Such reasoning, it is urged, is superfluous, for it would have been sufficient to say that a quince is an article of food in order to bring it within the principle without relying on the analogy of apples.

As an example of violation of the rule that analogy must not be applied to the vocabulary of the text, but to the cause on which the law is based, the Hanafis cite the deduction made by the Shafi’is from the text which forbids drinking of khamr, an intoxicating drink prepared by fermenting the juice of grapes. The Shafi’is say that the root meaning of khamr is something which clouds the senses and hence the word applies to all intoxicants. The Hanafis object, saying that this is applying analogy merely to the language of the text.

The deduction must not be such as to involve a change in the law embodied in the text.

Example: A contract, in the nature of Salam by which a man buys an article to be delivered by the vendor subsequently and pays the price in advance, would not be a valid transaction according to the general rule of law by which a contract of sale is only valid if the thing sold be in existence at the time of the contract. The validity of a Salam contract has, however, been established by a tradition which says that the sale of an article to be delivered at a fixed date is lawful. When the Shafi’is hold that such a contract is lawful even if no date is fixed, they are charged with introducing a change in the law of the text.

Illat or Effective cause: Its general characteristic

In plain words ‘illat may be defined as the fact, circumstance, or consideration which the Lawgiver has had in regard in laying down the law embodied in a text.

When the effective cause of a text has been determined the jurist is in a position by ta’lil, or reasoning based on that cause, to apply the law of the text in a case in which the same cause is present.

The accepted Sunni doctrine is that the Lawgiver in enacting laws has in regard a certain policy (hikmat, maslahat).

Deductions based merely on the general policy of the law not allowed

Generally speaking, it is not allowable to a jurist to make deductions merely from the broad policy of the law. The effective cause must have a particular reference to the subject to which the text relates.

For instance, the preservation of human life is one of the general objects in view of the law, and if it were open to a jurist to base deductions thereon without anything more, the waging of religious wars would be unlawful. He should, therefore, on such a question look to the policy of the law on the subject of religious warfare, which declares such wars to be lawful, inasmuch as they tend to the preservation of religion.

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Sources of Law

by Raja Ali Leave a Comment

Following notes on Sources of Law have been taken from Principles of Mahomedan law By D.F Mulla.

The Quran:

THE primary source of laws in the Muhammadan system is revelation (wahi ).

Quran was revealed in parts to the Prophet of Arabia during a space of twenty or twenty-five years.

Most of the verses, which embody rules of law, were revealed to settle questions that actually arose for decision ; some in order to repeal objectionable customs like infanticide, gambling, usury and unlimited polygamy ; some for effecting social reforms such as by raising the legal status of women, settling the question of succession and inheritance on an equitable basis, providing protection for the rights of minors fed other persons under disability ; and some lay down the principles of punishment for the purpose of securing peace and order.

These rules principally occur in the Suratu’l-Baqara, Suratu’n-Nisa’, Siiratu Ali ‘Imran, Suratu’l-Ma’ida, Suratu’n-Niir, Siiratu’t-Talaq and Siiratu Bani-Isra’il.

Difference between Quran and The Traditions:

The difference between the Qur’an and the precepts lies in the fact that the former contains the very words of God, while the precepts were delivered in the Prophet’s own language.

Further, no doubt can reasonably be entertained as to the authenticity of any verse of the Qur’an, the whole of which is held to be mutawatir, that is, proved by universally accepted testimony.

There are but a few precepts some say five or six which can be said to be so proved. The reason for this is that, while the texts of the Qur’an were collected by the authority of the State soon after the death of the Prophet, the traditions were not so collected.

IJMA’ AND CUSTOMS

IJMA’ OR CONSENSUS OF JURISTIC OPINION

Definition of Ijma

Ijma‘ is defined as agreement of the jurists among the followers of Muhammad in a particular age on a question of law.

Texts in Quran in support of Ijma

Its authority as a source of laws is founded on certain Qur’anic and traditional texts.

The principle underlying these texts is expressed in especially apt terms in one of them which says :

‘ Whatever the Muslims hold to be good is good before God.’

The other texts relied on in this connexion are the following :

‘ My followers will never agree upon what is wrong.’

(Uddi’s Commentary, vol. ii, p. 34.)

‘ It is incumbent upon you to follow the most numerous body.’

(A tradition, see Kashfu’Msrar, vol. iii, p. 258)

Whoever separates himself (from the main body) will go to hell.’

(A tradition, see U4di’s Commentary, vol. ii, p. 34 ; Taqrir ‘, vol. iii, p. 85.)

Do not be like those who separated and divided after they had received clear proofs.’

(A Qur’anic verse, see ‘Taudih’, p. 299.)

‘ Obey God and obey the Prophet and those amongst you who have authority.’

(A Qur’anic verse, see ‘ Suratu’n-Nisa’.)

‘ If you yourself do not know, then question those who do.’

(Ibid, see ‘Taudih ‘ on margin of ‘Talwfh’, p. 514.)

“You are the best of men, and it is your duty to order men to do what is right and to forbid them from practising what is wrong.’

(Ibid, see’ ‘ Bazdawi ‘, vol. Hi, p. 255.)

Ijma is an essential principle of Sunni jurisprudence:

The four Sunni Schools of law hold Ijma’ to be a valid source of laws.

Ijma’ is an essential and characteristic principle of Sunni jurisprudence, one upon which the Muhammadan community acted as soon as they were left to their own resources and were called upon to solve the first and most important constitutional problem that arose on the Prophet’s death, namely, the selection of the spiritual and executive head of the community.

The election of Abu Bakr to the Caliphate by the votes of the people was based, as is well known, on the principle of Ijma’.

Some Shi’ahs, Kharjis and Nazzam do not recognize this source of Law:

Among the Shi’ahs some jurists hold that questions relating to the Shari’at cannot be authoritatively determined by mere consensus of opinion, while other ‘ Shi’ah jurists, though admitting the authority of Ijma’, base it on a presumption that, when the Mujtahids agree in a certain view, they voice the opinion of the invisible Imam.

Argument in Support of Ijma:

In a Qur’anic text ‘ To-day we have completed your religion.’ , it is laid down that God has completed the Islamic religion, and it is also laid down that it will last forever, and that Muhammad was the last of the Prophets.

In the Qur’an, however, only a few rules of law have been enunciated, and these are by no means sufficient to cover the numerous questions that arise from day to day.

If we add to this the fact that the Prophet is dead, and we can no longer have his guidance, it necessarily follows that any rule of law, which is not found to be explicitly laid down in the Qur’an or by the precepts of the Prophet, must be capable of being deduced from them.

Ijma of different kinds:

Ijma’ is of several grades in point of authority.

Absolute Ijma’ insures certainty of belief so that any one not believing in the validity of a rule based on such Ijma’ becomes chargeable with unbelief.

An Ijma’ is said to belong to this category if it be one in strict conformity with the requirements of law and proved by infallible testimony.

Then there are other Ijma’s which impart binding authority to the rulings founded upon them, but do not ensure certainty of belief.

These are Ijma’s which are either not constituted in strict accordance with the law or not proved by universal testimony.

Again Ijma’s of the Companions have in some respects a higher authority than Ijma’s of other jurists.

Qualifications of a Mujtahid:

Fakhru’l-Islam lays down generally that he must be conversant with the science of law in both the branches, namely, the principles of jurisprudence (Usul) and the rules of law in the different departments (Faru’).

It is necessary for a jurist that he should have knowledge of the Qur’an and be able not only to read it, but also to understand it and interpret its meaning.

He should be familiar with the traditions reported from the Prophet and be able to distinguish the authentic from the non-authentic, the universally known and the well known from traditions of isolated origin, and should also know the nature of authority attached to each class of traditions.

He must be conversant with the rules and methods of analogical deduction.

How far is heresy (unorthodoxy) a disqualification?

According to Sadru’sh-Shari’at and many other Hanafi jurists, Ijma’ is confined to the orthodox sects so that in their opinion heretics generally have no voice in Ijma’, while according to other authoritative Hanafi jurists, such heretics alone are to be excluded whose heretical doctrines amount to infidelity or who actively propagate their views.

The Shafi’fs and Malikis would only exclude those heretics whose doctrines amount to infidelity.

The orthodox sects are called Ahlu’s-Sunnat wa’l-Jama’at, i.e. followers of the traditionary religion and the main body, a name which is appropriated by men belonging to the four Schools of law with whose jurisprudence we are concerned.

As regards those heretics, who attempt to convert men to their own doctrines and preach against the rest of the Muslims, this very fact, which shows that their minds are biased, disqualifies them from joining in Ijma’, because a prejudiced mind cannot arrive at the truth.

Examples of Different forms of heresy:

The Kharijis who did not accept the Caliphate of ‘Ali, and also held the view that the commission of any sin however trivial turned a Muslim into a nonbeliever, and those Shi’ahs who disputed the right of ‘Umar and ‘Uthman to the Caliphate are classed as heretics, whose doctrines indicate biased minds.

As belonging to the class of heretics who are excluded from Ijma’, because of holding doctrines involving unbelief, may be mentioned men who profess that God’s knowledge extends only to the actual creation and not beyond it, and those Shi’ahs who say that it was ‘Ali whom God originally intended to vest with the mission of the Prophet, and that it was through a mistake of the angel Gabriel that Muhammad received his high office.

Among the heretics who are disqualified there are also men whose conduct and doctrines indicate not only bias but a hardened conscience, for instance, that class of Shi’ahs who scoff at the Companions of the Prophet like Abu Bakr, ‘Umar and ‘Uthman and invent slanderous stories regarding them.

Transgressor of Law whether a disqualification:

According to accepted Hanafi opinion, a fasiq or transgressor of the religious injunctions is excluded from these deliberations. The argument of those who hold this view is that the opinion of a man who does not act up to his doctrines is liable to distrust.

According to the accepted Shafi’is opinion and probably also Maliki opinion, mere transgression is no disqualification.

Ijma not confined to jurists of any particular age or country

According to the accepted opinion of all the four Sunni Schools, Ijma’ is not confined to any particular age or country.

The Malikis recognize the validity of Ijma’ of the Companions and their successors residing at Medina, without reference to the opinion of others.

According to one reported version of Imam Hanbal’s opinion, which is also said to be the opinion of some other jurists, Ijma’ is confined to the Companions.

Opinion of jurists of Medina:

Malik says that sacred learning, if not confined to Madina, was mostly to be found there, meaning during the time of the Companions and their successors, and that special sanctity attached to that sacred city, as it was the place where the Prophet took refuge and carried out the greater part of his mission.

Two traditions are also relied upon in support of the Maliki view. ‘ Medina throws out its dross as fire the dross of metal ‘, and ‘ Islam will stick to Medina as a serpent to its hole”.

These traditions are, however, interpreted by other jurists as being merely indicative of the sacred character of the city.

Against this claim, it is urged that men, learned in the Qur’an, the Hadith, and the law, dispersed to all parts of Arabia, some during the Prophet’s lifetime, and others after his death. They further point out that Mecca is no less sacred than Madina.

Opinion of the Companions of the Prophet:

Those jurists who would restrict Ijma’ exclusively to the Companions, contend that most of the texts relied upon as authority, such as: ‘ You are the best of men ‘, ‘ My followers will never agree upon an error ‘, and the like refer to the Companions alone.

But the generality of jurists say that the words are of general application, and there is no reason why a limited meaning should be put upon them.

Opinion of the Descendants of the Prophet alone:

The Shi’ahs, specially the Imamiyas and the Zaidiyas, admit the authority of collective decision of the descendants of the Prophet alone.

They point in support of their contention to a verse of the Qur’an in which it is laid down:’ God wishes to cleanse the people of the house (of the Prophet) of impurities ‘, and also to a precept of the Prophet to the effect: ‘ I am leaving among you two sheet anchors, if you hold by them, you will not go wrong, the Book and my descendants.’

The Sunnis explain the Qur’anic verse as having reference not to the Prophet’s descendants, but to his wives, and say further that it means no more than that they had been purged of unbelief. As regards the tradition, they argue that its proof rests on isolated testimony, and cannot, therefore, support a doctrine of absolute authority like Ijma’.

Opinions of the First four Caliphs:

There have been some Hanafi doctors such as Qadi Abu Khazim in the reign of Mu’tadid Billah, who held that concurrent decision of the first four Caliphs has the effect of Ijma’, and this, according to one version, was the opinion of Hanbal.

Conditions related to the constitution of Ijma:

According to the accepted doctrine of the four Sunni Schools, there must be unanimity of opinion among all the jurists of the age, in which the decision in question is arrived at, in order that such decision may have the force of Ijma’ in the absolute form.

The reason, why unanimity is insisted on for Ijma’ in the absolute form is thus stated : every jurist individually is liable to err, and the texts, it is urged, raise a presumption of infallibility only in favour of the entire body.

But, if the majority of jurists who agree in a certain conclusion do not admit that those who dissent from them possess the qualifications of a jurist, such dissent will not preclude the formation of absolute Ijma’.

Some doctors go further and hold that Ijma’ of the majority of jurists is of absolute authority, even though they do not question the qualifications of the dissentient minority.

The Hanafis, the Shafi’is, and the Malikis hold that, if the number of dissentients be not large, the view of the majority will be a valid and binding authority, though not absolute in the sense that a person disputing it would become an infidel.

The jurists, who hold that the opinion of the majority is sufficient for the purposes of absolute Ijma’, interpret the texts in question as meaning most and not all. They contend, that if it were otherwise, the doctrine would be practically impossible of realization.

It may be observed that, though Ijma’ in the absolute sense is difficult of realization at the present day, the value of the doctrine in its practical aspect cannot be materially affected by that fact once it is conceded that the opinion of the majority is of binding authority.

When is Ijma completed?

According to the Hanafis the Malikis and most Shafi’is an Ijma’ is completed as soon as the jurists of the age in which the question arose has come to an agreement thereon, after they have had sufficient time to mature their deliberations.

But according to one version of Hanbal’s opinion and some Shafi’i doctors, it is necessary to wait until the age in which the jurists who were parties to the Ijma’ have come to an end, or, in other words, until all of them have died without any one having withdrawn his assent or changed his opinion.

Once a question is decided, it cannot be reopened by individual jurists

According to the generally received Sunni view, when a question is determined by consensus of opinion, it is not open to individual jurists of the same or subsequent age to come to a different conclusion, except when the matter is one in which some jurist, before the formation of the Ijma’, was known to have entertained a different view, or a jurist a party to the Ijma’ happened afterwards to change his view.

For instance, if the Companions of the Prophet agreed in laying down a certain law, some among them along with the successors might not subsequently come to a different conclusion, unless the matter was one in which before such agreement some of the Companions had expressed a different view.

One Ijma may be reversed by a subsequent Ijma

Ijma’ of one age may be reversed by subsequent Ijma’ of the same age, in which case the first resolution ceases to have operation.

Similarly Ijma’ of one age may be repealed by Ijma’ of a subsequent age with one exception, namely, an Ijma’ arrived at by the Companions of the Prophet is incapable of being repealed afterwards.

In the opinion of Shafi’is, which is also reported to be the view of Hanbal, consensus of opinion has no force in determining the law in a matter on which the Companions of the Prophet had expressed conflicting views.

In support of the Shafi’i view it is urged that, if Ijma’ be allowed in a matter in which some of the Companions had previously expressed a different opinion, then it would follow that those Companions were misled, because a law established by consensus of opinion is regarded as so indisputably right, that any one disputing it makes himself liable to a charge of infidelity. Such a reflection on a Companion of the Prophet is not allowed.

The Hanafis answer that every Mujtahid is liable to err, so is a Companion. They, however, concede that Ijma’ in such circumstances would not be absolute, so that any one disputing the decision would not incur the guilt of infidelity.

The number of jurists participating in the Ijma need not be large

In order that a valid Ijma’ may be arrived at, it is not necessary according to the Hanafis and the Malikis that the number of jurists participating in the deliberation should be large. But their number must not, according to some, be less than three, according to others not less than two.

Ijma may be based on Quran, Hadith, or Analogy

Ijma’ may be based on a text of the Qur’an or of Hadith or on analogy. This is the view of all the Sunni Schools.

The Mu’tazilis and the Zahirites, on the other hand, do not admit the validity of an Ijma’ which is based on an isolated tradition, or on analogical reasoning.

They say that, since a concurrent decision is absolute in its legal effect, the authority on which it is supported must also be of a conclusive nature.

The election of Abu Bakr to the Caliphate is a well-known instance of Ijrna’ based on analogy. The Companions held that he was the fittest person for the office, on the analogy of the fact that during his lifetime the Prophet himself once permitted him to lead the prayers, the argument being that the man who was considered a proper leader of the Muslims in matters of religion was so a fortiori in the rest of their affairs.

Another instance of Ijma’, based on analogy is the law laying down a sentence of eighty stripes for the offence of drunkenness. The analogy is based on the sentence for slander, because a drunken man having no control over his tongue is likely, it is said, to utter words of slander.

Proof of Ijma

The next question relates to the nature of evidence by which the fact that a particular question has been determined by consensus of opinion may be proved.

It may be proved, either as a matter of universal or continuous notoriety, or as being well known among the people. There is no difference so far among the four Sunni Schools.

But the Hanafis add that it may also be proved by isolated information. Imam Ghazzali among the Shafi’i jurists is of opinion that Ijma’ resting upon isolated testimony is of no authority, and there are some Hanafis who take the same view.

Legal effect of Ijma

The law laid down by consensus of opinion is authoritative and binding. In its theological aspect, however, according to the Hanafis, it is only when such collective determination conforms in its constitution and proof strictly to the requirements of the law that it can be said to be absolute in the sense that it would ensure certainty of belief, so that any one disputing its authority would be guilty of infidelity.

According to the accepted Shafi’i and Malik! doctrines, a man disputing the authority of Ijma’ does not become guilty of infidelity, except when the decision is in respect of matters, which are established by clear authority and universally accepted as such, such as the obligation to observe the daily prayers, to fast during the Ramadan, to pay zakat and to perform pilgrimage, the unlawfulness of whoredom, of drinking intoxicating liquor, of dealing in usury, and the lawfulness, of marriage, sale, lease and the like.

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History of Islamic Law

by Raja Ali Leave a Comment

Following notes on History of Islamic Law have been taken from Principles of Mahomedan law By D.F Mulla.

LAW AND THE SCIENCE OF JURISPRUDENCE AFTER THE PROMULGATION OF ISLAM

The history of Muhammadan law subsequently to the promulgation of Islam and of the Muhammadan legal science is divisible into four distinct periods.

The first Period commenced with the Hijrat of the Prophet to Medina (A. D. 622) and ended with his death (A. D. 632).

This has been rightly called the , ‘legislative period’ of Islam when laws were enacted (passed) by the divine legislator and promulgated (broadcasted) in the words of the Qur’an, or by the precepts of Muhammad.

These are the texts upon which as their foundation the superstructure the four Sunni Schools has been constructed.

The second period extends from the date of the Prophet’s death to the foundation of different schools of jurisprudence, and would cover, roughly speaking, the time of the Companions of the Prophet (Ashab) and their successors (Tabi’iin).

It was an age as has been observed mainly of collection and of interpretation and extension of laws by collective deliberations.

The third period “Was marked by a theoretical and scientific study of the law and religion, and it was then that the four Sunni Schools of jurisprudence were established.

It commenced about the beginning of the second century of the Hijra and practically ended with the third century.

Since then there has been no independent exposition (explanation) of Muhammadan law, and jurists have been engaged within the limits of each School to develop the work of its founders. This may be called the fourth period in the history of Muhammadan law and cannot properly be said to have yet come to an end.

The First Period

The Quran

Many of the verses laying down rules of law were revealed with reference to cases which actually arose.

The Precepts or Ahadith

The other sources of the ordinances (orders) of God, during the lifetime of the Prophet, were his precepts or Ahadith.

Often questions arose for decision, for the solution of which no direct revelation was forthcoming (helpful), or certain points had to be explained and made clear.

The pronouncements made by the Prophet on all such occasions are known as Ahadith or precepts, and are regarded as of sacred authority.

Prophet’s approval or disapproval was sometimes implied from his conduct. If, for instance, a certain usage or course of action was followed by the Muslims within his knowledge, and the Prophet expressed no disapproval thereof, its legality was presumed (assumed). Similarly, if the Prophet studiously (profoundly) avoided a certain course of conduct, it has to be presumed that he disapproved it.

The Second Period

After the death of Prophet (in 632), the divine Book and the precepts and the precedents of the Prophet were left for reference and instruction.

If a text of the Qur’an or pronouncement of the Prophet covered a point, or if the Prophet had decided a similar case, there could be no difficulty.

But fresh facts and new circumstances often arose for which no provision had been made, specially as the affairs of the community became more complex with the growth of empire.

Those who were associated with the Prophet as his Companions, and often shared his counsels, must have known, as if by instinct (nature), the policy of Islamic law, and whether a particular rule or decision was in harmony with its principles.

It is presumed, therefore, that an agreement among the Companions in a particular view vouched for its absolute soundness, and even their isolated opinions are regarded as of high authority.

The first and the most momentous problem that the community had to solve on the Prophet’s death was that of finding a successor to him as the head of the Muhammadan Commonwealth. Over this question the Muhammadan world has since then divided itself into two hostile factions, the Shi’ahs who assert that the Imamate or Caliphate should have continued in the family of the Prophet, and the rest of the Muhammadans who support the right of the community (Jama’t) to elect the chief.

As the Muhammadan community was to be governed in the main on the principles already laid down for the purpose, the necessity of collecting the verses of the Qur’an and the precepts and precedents of the Prophet forced itself upon the attention of the early Muslims.

The Hadith was not collected by authority of the state

The sayings and decisions of the Prophet were not, however, collected by the authority of the State as was done in the case of the Qur’an.

Men who were most learned in the traditions soon gathered round them an increasing band of students eager to learn and store up every saying of the Prophet.

The traditionalist and Jurists:

All traditionists, however, were not necessarily jurists,

Among those who, by their learning and aptitude in deducing rules of secular and canon law, acquired eminence among the Companions of the Prophet, the names of ‘AH, ‘Urnar, Ibn ‘Umar, Ibn Mas’iid and Ibn ‘Abbas stand out most prominent, and many important principles of Muhammadan jurisprudence are based on their opinion.

Ibn Mas’ud for a long time gave lectures in Hadith and law at Kufa, while other jurists and traditionists carried on the work of teaching at Madina.

These two places, especially the latter, continued for a long time to be the seats of sacred learning. Of Ibn Mas’ud’s pupils the names of Al-qama and Aswad are best known.

Al-qama occupied the professorial seat, and when the latter died he was succeeded by Aswad. On Aswad’s death the mantle (blanket) of the teacher fell on the shoulders of the famous Ibrahim an-Nakha’f, who was known as ‘ the jurist of ‘Iraq ‘.

Ibrahim is reported to have made a collection of the principles of law that had been hitherto established, and Hammad, under whom Abu Hanifa afterwards studied jurisprudence, had a copy of this collection.

Administration of Justice under four Caliphs:

Abu Bakr was the first to establish a prison-house for the malefactors (criminals).

His successor ‘Umar appointed the first Qadi, and he enforced the principle that the majesty of law was supreme, and that the administration of justice must be above the suspicion of subservience to executive authority.

The study of Law and traditions during Umayyad Caliphate

The first act of the Umaiyad dynasty, their successors, was to remove the seat of the Caliphate to Damascus, outside the limits of Arabia Proper.

The Qadi still administered justice, but law during the reign of the Umaiyads grew and developed only in the lecture rooms of the professors, who did not come into contact with the practical concerns of the administration of justice.

The distinction of first classifying the laws under different subjects, of introducing the use of technical phraseology, and of arranging the different sources of law is ascribed (credited) by some to Wasil ibn ‘Ata, the founder of the Mu’tazila sect.

Laws encouragement by Abbasids

With the fall of the house of the Umaiyads and the accession of the ‘Abbasides to power, in A. H. 132, a new impetus (motivation) was given to the study of jurisprudence.

Baghdad their capital became the centre of culture and attracted jurists and traditionists from Hijaz, Syria, Mesopotamia and other parts of the empire.

The ‘ Abbaside Caliphs appointed as Qadis men noted for their learning an legal acumen, and gave them handsome salaries and a high place of dignity in the State.

Foundation of Sunni School of Law:

It was during the reign of the ‘Abbasides that the four Sunn! Schools of law, with whose jurisprudence we are now concerned, were founded.

The principles of these four Schools are substantially the same, and they differ from each other merely in matters of detail.

They are classed together in contradistinction to the only other important existing school of law among the Muhammadans, namely,the Shi’ah school, though the differences even between the Shl’ahs and the Sunnis centre more round questions relating to political events of the past, rather than to any general principles of law or jurisprudence.

Abu Hanifa

Abu Hanifa an-Nu’man ibn Thabit, commonly known as Imam Abu Hanifa, the founder of the most important of the Sunni schools, was born in the year A. H. 80, during the time of the Umaiyad Caliph, ‘Abdu’l-Malik.

He attended the lectures of Ja’far as-Sadiq and of Hammad, the first of whom, a descendant of the Prophet, was noted for his great learning and piety, and is regarded as an Imam of the Shi’ah School.

Abu Hanifa was endowed with talents of an exceptional nature and had the true lawyer’s gift of detecting nice distinctions. He possessed remarkable powers of reasoning and deduction, which, combined with the resources of a retentive (retaining) memory and a clear understanding, brought him into rapid prominence as a master of jurisprudence.

He was considered by his contemporaries to rely less upon the traditions in arriving at legal conclusions and more upon deductions than the other jurists.

In his time the jurists were broadly divided into two classes: those of Hijaz or Arabia Proper who were called ‘ the upholders of the traditions ‘. And those of ‘Iraq who were known as ‘upholders of private opinion ‘.

In sifting (scrutinizing) the traditions Abii’Hanifa was undoubtedly more strict than the others, and the tests that he applied to them resulted in excluding many traditions which the people generally accepted as genuine.

His chief work lay in formulating the theories and principles of jurisprudence, and he was in fact the founder of the Muhammadan science of law as we find it.

Qiyas and Istihsan:

He was the first to give prominence to the doctrine of Qiyas or analogical deduction, though, as a principle of law, it was undoubtedly in practical operation before his time.

He, however, assigned a distinctive name and prominent position to the principle by which, in Muhammadan jurisprudence, the theory of law is modified in its application to actual facts, calling it istihsan which bears in many points remarkable resemblance to the doctrines of equity (justice).

Abu Hanifa also extended the doctrine of Ijma’ (consensus of opinion) beyond what many of the contemporaries were willing to concede (allow).

Some were of opinion that the validity of Ijma’ as a source of laws of opinion should be confined to the companions of the Prophet and others would extend it to their successors, but no further.

Abu Hanifa affirmed its validity in every age.

Codification of Law by Abu Hanifa and his Disciples

He also instituted, it is said, a committee consisting of forty men from among his principal disciples for the codification of the laws.

It took thirty years for the code to be completed, but each part as it was finished was circulated broadcast.

The entire code, however, has now been lost, an irreparable loss no doubt to the cause of Muhammadan jurisprudence.

We have, however, a small collection of traditions based on his authority and called ‘ Musnadu’l-Imam Abu Hanifa ‘ and a letter which he wrote for the instruction and guidance of his disciple Abu Yusuf in his office of Qadi is still in existence.

Abu Hanifa was offered the office of Qadi, and because he refused to accept it on conscientious grounds, Ibn Hubaira, the Governor of Kufa, had him flogged. Al-Mansiir at last cast him into prison, ostensibly for the same reason, and there the great jurist expired, having been, as believed, poisoned at the instance of the Caliph.

Malik

Malik was born in A. H. 95, at Madina, and there he studied and taught and did all his work.

He was not only a traditionist but a jurist, and founded a school of law which exercised great influence in his lifetime.

Malik leaned more upon traditions and the usages of the Prophet and the precedents established by his Companions.

He attached a preponderating weight to the usages and customs of Madina, relying on the presumption that they must have been transmitted from the time of the Prophet.

He recognized a principle, corresponding to that of Abu Hanifa’s istihsan, namely, that of public welfare (muslahat) as a basis of deduction.

To the four main sources of law, the Qur’an, the Hadith, Ijrna’ and analogical deduction he would add Istadlal as a fifth source.

Istadlal is a principle of juristic deduction which according to his School does not come within the scope of analogy.

Malik ibn Anas died twenty-nine years after Abu Hanifa.

Imam Malik’s ‘Al-Muwatta ‘, a collection of traditions, is well known and contains about three hundred traditions.

Shafi’i

Among Malik’s pupils, Muhammad ibn Idris Ash-Shafi’i attained even greater eminence as a jurist than the master himself.

He was born in Palestine, being descended from ‘Abdu’l-Muttalib, the grandfather of the Prophet.

He attended lectures on law and traditions not only of Malik ibn Anas, but of other noted doctors in law including Muhammad, the disciple of Abu Hanifa.

At an early age he evinced (demonstrated) proofs of great talents, and while still a youth delivered lectures in jurisprudence. His fame soon spread and the doctrines which he enunciated (articulated) found great vogue (trend).

The school of law with which his name is associated takes rank in the number and importance of its followers next only to the Hanafi school.

Egypt is the principal stronghold of his doctrines, but his followers are to be found in other parts of Africa, in Arabia and also some in India, specially in Bombay and Madras.

He adopted a middle course between Abu Hanifa and Malik in the use of traditions.

Ahmad ibn Hanbal

Among the scholars who attended Ash-Shafi’i’s lectures was Abu ‘Abdi’llah Ahmad ibn Hanbal, known as Imam Hanbal, who founded the fourth and the latest of the Sunni Schools of jurisprudence.

He was born at Baghdad (A. H. 164) and studied under different masters including Shafi’i.

But from all the accounts that are left of him, he appears to have been more learned in the traditions than in the science of law.

In law he adhered (followed) rigidly to the traditions, a much larger number of which he felt himself at liberty to act upon than any other doctor.

His interpretation of them was literal and unbending, and according to some he allowed a very narrow margin to the doctrines of agreement and analogy.

He was a man of great piety and uncompromising opinions, and was persecuted (offended) by the Caliph Al-Ma’mun, because he adhered to his own views on certain points of divinity, and refused to conform (follow) to those that had found favour in court.

His followers, who were regarded as reactionary and troublesome, were persecuted from time to time.

Now his School consists only of a few followers and those only in certain parts of Arabia.

With Imam Hanbal, therefore, the age of independent jurists came to an end, and the work that has been done since then in developing the laws and legal science has been mainly supplementary (additional).

Study of science of Traditions:

A new band of scholars, the most prominent of whom are known as the Imams of tradition as distinguished from Imams of jurisprudence, headed by Abti ‘Abdi’llah Muhammad Abu Isma’il al- Bukhari commonly known as Bukhari, a pupil of Hanbal himself, devoted themselves exclusively to a scientific investigation of science of Traditions.

From the latter half of the third until the earlier part of the fourth century (A. H.) the task of collecting and sifting the traditions was undertaken in the same spirit of comprehensive (complete) thoroughness which characterized the work of Abu Hanifa, Shafi’i and Malik in the domain (area) of jurisprudence.

Bukhari “was the pioneer (forerunner) in this enterprise (initiative) and his collections are regarded by the Muhammadans of Sunni Schools as the most authoritative.

His book contains about 7,000 traditions which he selected as authentic out of 600,000.

He died in A. H. 256 (A.D.869).

Side by side with Bukhari and in the same field and with same scientific methods though independently, worked Muslim ibnu’l-Hajjaj of Nishapur known as Muslim. He died in A. H. 261 (A. D. 874).

Muslim’s work, though smaller in bulk, can hardly be said to be of inferior authority to that of Bukhari, and the collections of these two are pre-eminently distinguished as the two ‘ Sahihs ‘ or the two correct collections out of the six collections which are regarded by the Sunnis as authentic.

The remaining four collections are by Tirmidhi (died A.H. 279 or A. D. 892), Abu Da’ud (died A.H. 275 or A.D. 888), Ibn Majah (died A.H. 273 or A. D. 886) and Nisa’i (died A.H. 303 or A.D. 915).

They all worked independently of each other, so that the same tradition is often to be met with in more than one of their books, and the greater the number of collections in which a particular tradition finds a place, its authority is held to be proportionately strengthened.

Still it is not to be supposed, because a tradition is reported in one of these collections even in Bukhari’s or Muslim’s, that it is always accepted as genuine by the followers of the Sunni Schools.

Indeed nothing has been a more fruitful source of conflicting opinions in matters of law among the Sunni jurists than the question whether a particular tradition is to be regarded as genuine or not, although it may be one for whose authority one or more of these writers may have vouched.

Influence of traditionalist on jurisprudence:

Their work has directly tended, as was to be expected, to strengthen the position of the jurists of Hijaz, or ‘ the upholders of traditions’, especially of the Shafi’f and Maliki Schools.

Though indirectly and perhaps more or less imperceptibly it has also exercised considerable influence on the ‘ followers of private judgement ‘, that is the ‘ Iraqi school of thought with which the name of Abu Hanifa is especially identified.

If we bear in mind that Abu Hanifa himself, who lived at a time when the precepts and usages of the Prophet were fresh in the memories of the successors of the Companions, and came into contact with almost all the great traditionists of the age, is reported to have accepted only seventeen or eighteen of them as genuine, and that the number of traditions, which his followers since his time have acted upon as authentic, may be counted by hundreds, one cannot help inferring that the stand-point of the Hanafi school of thought must have undergone great modification under the influence of Bukhari and his collaborators.

The study of Quran and the science of its interpretation:

Of the numerous commentaries that have been written on the science of interpretation of Quran (Tafir), those by Tabari (died in A.H. 310 or A. D. 9*22), Zamakhshari (died in A.H. 538 or A. D. 1143), Baidawi (died in A.H. 685 or A. D. 1286), Ghazzali (died in A.H. 504 or A.D. 1110), the two Jalalu’d-dins (one of whom died in 1459), and Fakhru’d-dfni’r-Razi are well known.

To this list may be added ‘ Tafsir-i- Ahmadi ‘, a most useful commentary on those verses of the Qur’an, from which rules of law have been deduced, written by Ahmad, commonly known as Mulla Ji’wan, who lived in the time of Aurangzeb.

For complete Muslim Law notes click here.

Pre-Islamic Traditions

by Raja Ali Leave a Comment

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 and mother did not inherit at all.

For complete Muslim Law notes click here.