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MUHAMMADAN JURISPRUDENCE
THE PRINCIPLES OF
MUHAMMADAN
JURISPRUDENCE
ACCORDING TO THE HANAF1, MAL1K1,
SHAFl'l
BY
ABDUR RAHIM,
M.A.
JUDICATURE AT MADRAS
LONDON LUZAC
:
MADRAS:
S.P.C.K.
&
Co.
DEPOSITORY
PBIHTED AT THE
6,
F. C. K.
1'KESS, VKl'EBV,
1911
MADRAS
PREFACE
vered in the University
deli-
Calcutta, as Tagore
of
which
the lectures
the substance of
have been so
to
myself, in the
The
first
usefulness
Chapter
will,
to
be
and
introductory,
its
to
trust, be apparent, especially with reference
XI
in Chapters
intended
is
to XII.
the
first
Chapter, I derived
from
valuable suggestions
ought to mention
on
Muhammadan
Theology.
Al-Usul or the
Chapters II to V contain an exposition of
Science of Law, as developed by the Muhammadan jurists be'
'
tween the
Era.
of
eighth
Much
of
and
this
'Taudih'
Sadru'sh-Shari'at's
is
are
Taftdzdnis"
',
Fakhru'l-Isldm's
'
fn'1-Israr',
mentaries
by Ibn
Jaw&mi'
by
Bahrul
'
sometime in
which
',
Al-Usul
Musullumu'th-Thabut
Hammam,
',
'
a translation
Usul which
on
'
Taudih
practically
recognized as a standard
Talwih
'
the Christian
of
was written
is
which
subject.
consulted
centuries
the fourteenth
Ulum and
is
its
commentary
by Muhibbullah and
',
Nuru'l-Anwar
and
work on
have largely
commentary on
I
others,
',
its
its
Attaqrir-wa't
'
;
Kash-
com-
Tahbir
'
by Mullah Jiwan
'
',
Jam'u'l-
commentary by Al-M&halli
'
'
invaluable help of
these
eminent
jurists,
who
'
fit
in
Chapters II to
endeavoured to explain the fundamental theories and
with
legal ideas
on
PREFACE
which the
different
Muhammadan
the
These
features.
Muhammadan
departments of the
forth
system are
under
legal code,
and
theories
several
its
are
principles
spersed in
'Hedaya',
the
'
'
to
It is
peculiar
found inter-
be
and
others
impart to
its
Muhammadan
and
Sharhu'l-Viqaya
heads,
law as the
also
in
the
difficult
always
know
to
quantum
which
rules
cussions
whose
is
of
the
the
for
necessary
of
of
purpose
knowledge of
following
benefit
same time
who
are
legal
expression.
to
far
familiar
technical and
If
as
make
only conversant
would appeal
are
and as
have
the
failed in
especially to the
with
the
possible
their
with
in
own
their
as accu-
language,
meaning
modern forms and modes
my
effort in either
of
the
translating
of
direction,
who
difficulty
for
have en-
jurists
rately as possible,
at the
dis-
jurists,
and
its
the
ideas
of
European language.
In spite
will be
of
of
some
the shortcomings of
practical use in
this
helping
treatise,
those
of
afraid,
rules
to
many
lawyers in
India,
to legal
made by
a special
who
hope that
data.
the
interest
it
are desirous
as the subject of
it
is
the
habit,
an arbitrary collection
as
intelligible
Further,
Muhammadan
to
those
am
of
venture
jurists
who
are
PEBPAGB
to the
age in which those jurists lived, but the nature and the
the task which
difficulties of
to construct the
science of
Muhammadim
that
vii
an integral part
is
Jurisprudence
not only
is
purports to
entirely
of religion,
so
be in fact a science
of
the
study of law or
and character
of the
principles which inspire and guide the lives and conduct of the
Muhammadans or, to be more accurate, of the Sunni Muhammadans,
that
is,
the
followers of
who form
title,
the four
Schools
of
Muhammadan
population of
the world.
Canon Edward
Sell,
D.D.,
transliteration
Eanganadhaiyar,
Panickar,
sary
E.A., M.L.,
of Arabic
B.A.,
'
my
M.B.A.S., in charge
Faith of Iskim
of
B.L.,
Advocate,
the
Arabic
',
words,
High Court
who
of
the
S.P.C.K.
and
to
and P. Eundu
of Cases, the
MADRAS,
May
1,
1911.
to
Messrs.
CONTENTS
CHAPTER
PAGE
.ISLAM
.*.
*.
MUHAMMADAN LAW
III
IN BRITISH INDIA
CHAPTER
OF
SCIENCES
LAW,
LAWS
II
...
16
...
37
II
...
SOURCES OF LAW
i*
...
CHAPTER
SECTION
. .
II
PART
...
...
48
...
...
69
III
...
GENERAL
...
...
...
69
INTERPRETATION
...
...
...
77
II
IJMA'
PART
SECTION
ANALOGY
115
136
...
...
137
DEDUCTION
...
...
...
163
III
PUBLIC GOOD
...
...
...
166
IV
ISTIDLAL
...
...
...
166
...
...
...
168
...
...
193
II
,,
III- JURISTIC
...
...
...
CHAPTER
ACTS, RIGHTS AND OBLIGATIONS
B
IV
CONTENTS
CHAPTER V
LEGAL CAPACITY
PAGE
...
...
217
...
...
221
...
...
241
...
...
CHAPTER
VI
OWNERSHIP
...
...
...
...
261
POSSESSION
...
...
...
...
275
...
280
CONTRACTS
...
...
282
...
...
326
CHAPTER
VII
ACQUISITION OF OWNERSHIP
SEC! ION
II
...
CHAPTER
FAMILY LAW
VIII
...
...
CHAPTER IX
TORTS AND CRIMES
TORTS
...
...
...
...
351
CRIMES
...
...
...
...
361
...
...
364
...
383
392
CHAPTER X
PROCEDURE AND EVIDENCE
...
CHAPTER
XI
CHAPTER
XII
...
399
INDEX
...
412
...
...
Al-jami'u's-saghir.
Al-kafi.
'Al-khulasa.
Al-mabsiit.
Al-manar
Nurul Anwar).
(see
Al-Mankhiil
(MSS.
Bohar
Collections
at
the
Imperial
Library,
Calcutta).
Al-muhurrar.
Al-muhit.
Al-mukhtar.
At-taqrir wa't Tahbir (Bula'q edition).
commentary Kashful
Israr).
Adh-dhakhira.
An-nahar.
As-siyaru-1-kabir.
As-slyarus-saghlr.
At-Tafslru'1-Kabir (Egyptian edition).
Az-ziyadat.
Durru'l-Mukhtar (Egyptian
Muhtar).
editioii printed
on the margin
of
Eaddu'l
lii
edition).
and Chalpi).
Hardniyat.
Hedaya
(see Fathu'l-Qadfr).
Ibn Khaldiin.
Inaya (Egyptian
edition,
on the margin
of
Fathu'l-Qadfr).
Jamiu'l-Fatdwa.
Jamiu's-Saghlr.
Kanz
(printed
on the margin
Kasbfu'l-Ghumma (Egyptian
of
Bahrur-Rafq).
edition).
Khazanutu'l-muftaeen.
Majmu-un-nawazil.
Niqaya.
Niiru'l- Anwar
(Lucknow, Yusufi
edition).
Qudtiri.
Qur'an.
Qustalani (Bulaq edition).
Qinyah.
Sahih-ul-Bukhari (MnstafAi
edition).
Sahih of Muslim (Bulaq edition).
(Bombay
edition).
Talwih (Constantinople
edition).
of Talwfh).
xiii
TABLE OF CASES
PAGE
Abas
Ali
Sbikdar
v.
...
160)
Abdul Fateh
Muhammad
Abdua Subhan
v.
...
...
...
Ishaq
Korban
Ali (35
Gal, 294)
...
...
310
...
...
307
(25 Cal., 9)
...
45
v.
Bakar
v.
Koolsom Beebee
130)
Khatoon
Karimunissa
v.
...
...
Cal.,
498)
...
330
...
...
177
...
...
310
...
314
All.,
v.
Khan
Baquar
Bazloor Ruheem
Ali
v.
All.,
...
715)
...
Begum
(25
...
236)
(11
...
...
...
Sheik
Fatima Bibee
Ismailjee Bham
Ahmad Baksh (31
v. Ariff
Fatima Bibee
v.
271 P.C.)
Fazl Karim
v.
...
Maula Baksh
v.
Ibrahim Gulam
Ibrahim Sahib
Secretary
of
Ariff v.
y.
Saiboo (35
305
38
311
274
319; 35
...
...
...
Cal.,
44
...
(9 C.L.R., 66)
...
309
...
...
46,
M.I. A.,
...
v.
Fakirtawot
308
...
All.,
Mane
...
...
Anjuman Ara
...
551)
Biba Jan
v.
v.
494)
Cal.,
(23
...
Azimu-llah (12
Aulia Bibi v. Ala-ud-din (28
Ata-ullah
307
...
Aga Muhammad
...
...
Aizunnissa Khatoon
303
...
v.
...
(13 C.W.N.,
...
307
Cal.,
...
255-6
...
310
Cal., 1)
(6
...
...
37
...
...
256
M.H.C., 30)
...
272, 275
TABLE OF CASES
xvi
PAGE
Kadir
Ibrahim
Bowther
Rowther
v.
Muhammad Rahumadulla
Kaleloola Sahib
...
307
...
Khajah Husain AH
Shazadih Hazari
v.
...
344)
Khajoorronisaa
Kulsum Bibee
Rowshan Jehan
v.
v.
...
Muhammad Shah
v.
46
Ariff (10
C.W.N.,
...
...
255, 307
...
431)
301
Muhammad
v.
-.
Ahsanulla
...
v.
Cal.,
...
498 P.O.)
(17
Cal.,
All.,
...
v.
684
...
Amarchand Kundu
...
...
...
460)
Muhammad
...
v.
Mumtaz Ahmad's
Ahmadkhan
v.
307
...
Mulika (12
v.
...
Cal.,
1112)
Aga Muhammad
Suleiman Kadir
v.
Dorab Alikhan
Woozatunnesla Bibee in
Rememand Oudh
Legal
298
46
Aziz-ud-din
Cal.,
38
...
(2 Cal., 184)
...
Official
299
(12 W.R.,
...
...
499)
Begum
...
305
(8 Cal., 1)
300
...
298
...
...
310
...
...
37
...
42, 298,
308
...
Bindaneem
Jaffer
...
(34
309
...
32]
...
3Q9
ERRATA
Page
8.
for
48.
For
wad
juutLo
xX-e
'
For
67,-For
84.
>
'
it
For
'
168, line 3
from
170, line 2.
For
187,
line
'
passed
read
possessed
For
'
chose
354.
N.B.
read
choose
'
'
'.
read
some, Fatwa'.
'
'
'
'
'
preceptible
1.
For
'
read
read
'
judgment
'.
'
perceptible
Bahru'l-'Ulun
'.
community
'
read
commentary'.
foot-note 3.-.For H. C. Kept., 30 read 6 Mad. H. C.
Delete
effective
'.
'
For judgement
For
foot-note
302, lines 15
on an
to one based
'
'
272,
'
read
bottom.
'
from bottom.
12
'
cause
effective
'.
217.-.For
263,
an
to
cause
176, line 9
'.
read
<i>lc
them
'
read
<^jlal
For
read
and
'
18.
'
'
Coercion
'
'
C.,
'
Bahru'l-Ulum'B
Page 30 '.
'
'.
in the margin.
jj
a superfluous
Muhammadan
Jurisprudence
CHAPTER
of
Law,
draw attention
more important stages
wish
to
to
the
in the
among the
begin with a brief account of
the customs and usages that prevailed among the
Arabs at the time of the promulgation of Islam, for
growth
of
Muhammadans.
will
character.
Moreover,
it
new
and
The
laws.
of
of
the
'
'
Hedaya
'
partnership says
establishing the
Partnership is lawful
in
MUHAMMADAN JUEISPBUDENCE
because the Prophet found people practising it and confirmed them therein.' ' In commenting on this passage,
Ibn Hammam remarks
There is a clearer authority
'
in favour of legality of
partnership than certain tradi-
tions,
thus expressed
'
We
hold permissibility
original principle, and prohibition to be
equivalent to abrogating, with reference to the interval
of time between Jesus Christ and the Prophet, when
principle
to
be
is
the
human
action
permissible.'
cludes
have
in
fact, in-
many
been
recognition.
SECTION
BEFORE ISLAM
Constitution
of Arab
The
into tribes
and
sub-tribes,
families.
'
Hedaya
'
'
',
vol. v, p. 377.
FEE-ISLAMIC CUSTOMS
of
kinship
did not
a
also
The Arabs
Each
own
He was
chief.
bility
of
birth,
the confidence
generally a
man
tribe elected
its
Sometimes
surrender
it
him
to the
chief
of
the
tribe
for punish-
i_J)U.l).
If
MUHAMMADAN JUEISPKUDENCE
settled
at
Mecca
social
and political
were divided among
the twelve principal tribes or families. Of these the
office of deciding disputes was delegated to one tribe
The duty
and used to be exercised by its chief.
incidental to another important office was for the
chief who held it to pay from his own pocket fines
and compensations for wrongs committed by any of
his
tribesmen
What
happened
in the case
of an
offence
committed
by a
member
of one tribe
against
member
of another
tribe
If
member
another
was
of
one
some
for
tribe
time.
killed
tribe,
wilful
tribe of
member
of
of
it
the
demand that
them to suffer
compounded by
,.
compensation amounting to
,,
,,
to
his
in-
A case is
'
which is important as illusreported in Al-Bukhari
trating the custom of the Arabs in this connexion.
A man of the family of Banu Hashim was hired by
'
'
man
branch of
the tribe of
Syria in
the way, because the hired
man had given away a tether rope to a passer-by
without his master's knowledge, the latter in rage
threw a stick
man
in
at
a vital
he died, a
man
1
On
part, caused
of Yaman
Delhi edition,
his
death.
to
strike the
But before
vol.
i,
p. 542.
PRE-ISLAMIC CUSTOMS
way, he
to
had
him when he
requested
Abu
tell
been
the
Talib,
killed
by
When
a tether rope.
chief
his
of
arrived
his
employer
Mecca
in
family,
for the
how he
sake
of
Mecca, Abu TaliJB inquired of him what had happened to his man, and he said that he had sickened
on the way and died.
Subsequently, however, the
man of Yaman who had been charged with the message by the deceased, came to Mecca and communicated the same to Abu Talib.
The man who had
engaged the deceased was then making the circumA member of the family
ambulation of the Ka'ba.
of Banu Hashim went up to him and struck him
You have killed one of our men ', but Khasaying
dish denied the charge.
Abu Talib next went up
to the man and said
Choose at our hands one of
if
three things
you wish, give a hundred camels for
the murder of our kinsman, or, if you wish, get fifty
of your tribesmen to swear that you have not killed
him. If you refuse either of these we will kill you
to
'
'
his place.'
But, according to Zubair-ibn Bakkar,
both the parties referred the case to Walid ibnu'lin
Maghira
who
decided that
fifty
men
of
Banu Amir
Next a man
her request.
person came
men
to
Abu
Talib
to
Abu
procedure
that
used
to
be
adopted
when Procedure
4
MUHAMMADAN JURISPRUDENCE
If
ties.
to extort a confession.
Oaths
finally
attached
a place
called
Hatim
(Ak>-
Much
solemnity
administering
it
was
and
lit.
man
Punishment
retaliation
If
of
Other
Among other forms of punishment that prevailed
forms of
among the Arabs, it appears that they used to cut off
punishment
1
'
'
'
vi,
FEE-ISLAMIC CUSTOMS
the
right
hand
the
of
thief.
Among
the Jews of
status
the
of
children, there
flourished
name
must have
types of
of marriage, which
are instructive as relics of the different stages through
society
passed.
It
is
'(1)
form
of
ries
from
away
the
her
man
men,
less
sexual
forth a child.
so and so ?
(naming
whomsoever of them she chose), this is your son."
The child would then be ascribed to him, and he
was not allowed to disclaim its pateinity.
(4) A
number of men used to visit a woman who would
not refuse any visitors. These women were pros-
brought
titutes
and used
>
'
to
fix
at
the doors of
Kashfu'l-Ghummii',
vol.
ii,
pp. 105-6.
their
tents
MDHAMMADAN JUEISPEUDENCE
frequented her house would be assembled, and physiognomists used to decide to whom the child belonged.' '
Temporary
or raut'a
came
'
'
marriage
man
'
would be
his
take
care of
his
house.'
Dower
f^e)
was
of
mahr
in vogue
among
pre-Islamic Arabs. It formed a part of
the marriage contract, but in some cases the guardian
the
of the girl
Whether
violation of
the
and that the payment to her was but a later developAt all
ment, can only be a mere matter of conjecture.
dower
was
of
time
the
at
the
events,
regarded
Prophet
as a principal term of the marriage contract and
the right of the wife. Its payment, in the event of
divorce or death of the husband, was enforced by the
voice of public opinion, or by the power of the woman's
relatives,
marriage.
unless
it
device
3
*
'
Kashfu'l-Ghumma
Vide vol.
'
'
iii,
',
vol.
ii,
p. 56.
ii,
p. 52.
p. 151.
Tafsi'r-i-Ahmadf
',
p. 226.
K.ashfu'1-Ghumma
',
vol,
PBE-ISLAMIC CUSTOMS
marriage to the former.
In such a form
9
of
marriage
the
before
sheet
degrees of consanguinity.
There can be no doubt
that an Arab
could
not
'
Tafsfr-i-Ahmadr,
p. 257.
Ibid., p. 256.
3
'
Kaahfu'l-Ghumma
',
vol.
ii,
pp. 54-C.
MUHAMMADAN JURISPRUDENCE
10
marry
An Arab was
sisters.
permitted
and
her
It is doubtful
whether he could
1
mother-in-law
or
marry
step-daughter.
Unrestrained as an Arab was in the number of his
wives, he was likewise absolutely free to release himself
niece.
his
Divorce
Talaq
The
(
silk)-
depended upon his discretion 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 the divorce and resume marital connexion.
Sometimes an Arab would pronounce talaq ten times
and take his wife back and again divorce her and then
take her back and so on. 2 The wife in such a predicament was entirely at the mercy of the husband and
would not know when she was free. Sometimes the
husband would renounce his wife by means of what
It
was
not
husband to refuse
latter was not at
Da'
to
live
did
the
while the
See
Arabia
s
'
',
liberty
W. Robertson Smith's
p. 164.
Tafsir-i-Ahmadf
Ibid., p. 121.
Ibid., p. 122.
',
p. 130.
to
'
Kinship
and
Marriage
in
early
PRE-ISLAMIC CUSTOMS
cable divorce
back).
11
right to
A woman
fla'
if
or khul
On the
him be taken over in marriage by another.
death of the husband the period of 'iddat was one
year.
The
status of a child
of
its
mother.
In the
whom
known, but
'
Tafsfr-i-Ahmadi', p. 160.
MUHAMMADAN
12
JtlEISPRtJDENCE
Female
infanticide
same as
the
of
have a son, an
to
of
those
daughter as a
of
public property.
With the exception of a slave
who
property of his master, the Arab customary law recognized the right of every one to hold property. Though
a woman, as we shall see, was debarred from inheriting,
she was under no disability in the matter of owning
property. Anything that she might receive from her
The
position of an infant or a
worse, and the customary law of the Arabs provided no protection to him from the dishonesty of his
still
guardian.
1
'
Tafsfr-i-Ahmadi
',
p. 610.
PBE-ISLAMIC CUSTOMS
An Arab owner had
13
absolute
He
his
many
Sale
Muhammadan
2.
Sale
jurisprudence
of goods
for
goods
an
or
barter.
being
exchange
sale
of
(Muqayada
&4>liii),
in use.
-
Sale of
a form of
commonly
3.
established by the
1.
in
money
for
(Sarf v-J-o), or
money
money-
changing.
4.
Sale in which the price was paid in advance,
the article to be delivered on a future date this sale
:
was
Salam (U-).
called
5.
6.
An
7.
8.
Murabaha
vendor
sells
(t^ol-A),
transaction in
which the
and certain
stated profits.
_
9.
At-Tauwaliya
10.
Wadi' (_x*.),
11.
Musawama
12.
Sale
by
(JuJJil),
sale at less
(,iu>jLxx>),
throwing
sale
than cost
price.
by bargaining.
stone
r?}
k.l*U!U
_jo),
it
'
l
Hidiya and Fathu'1-Qadf r (Egyptian
and Kashfu'l-Ghumma ', vol. ii, pp. 6-7.
'
'
'
'
MUHAMMADAN JURISPRUDENCE
14
Munabadha
14.
(sJoliA),
a sale in which
the shop-
Muhaqala
(jdj'.^),
sale
of
womb.
or of a foetus in the
in this form
(UJI _w) >
vendor of the article says to the buyer,
'I sell you for the debt which I owe you on condition
that when I repay the debt you will give back the
article to me.'
The buyer, however, could not make
use of the article without the vendor's permission.
18.
A form of sale called two-bargains-in-one
in which the condition was that the buyer should
sell the article back to the vendor within a stated
Mu'amila or Bai'u'1-wafa
17.
of
the
sale
'
'
period.
19.
'Urbiin
(^f)
',
it,
forfeited.
sale in
possession of
Leases
order to
the contract.
muzara'a
(&.1:*).
FEE-ISLAMIC CUSTOMS
15
articles
'ariya
by
way
(ii.lc)j
of
An
was
will
inter
as full as his
vivos.
He was
power
not
to deal
limited
with
in
it
making
by acts dispositions
P roper y
testa-
dispositions to any proportion of his possessions, nor to any particular description of property.
He could make the bequest in favour of any one he
mentary
to
chose,
giving
away
leaving
his
own
children,
parents
The
natural-born
amount out
fixed
of
the estate.
An-Nawawi's Commentary on
vi, pp. 401 and 405-7.
1
vol.
<
'
At-Tafsiru'1-Kabfr
'
'
Tafsir-i-Ahmadi
pp. 60-1.
',
'
The
shares of the
Sahfh of Muslim
ii,
'
(Bulaq edition)
p. 357.
MUHAMMADAN JURISPRUDENCE
16
different
and
is
it
sibly the shares allotted varied according to the circumIf there were grown-up sons they probastances.
for
some
SECTION
Such
among
maintenance.
II.
briefly
was the
when
Muhammad,
We
a people
to
religion.
The history
Muhammadan
'
broadly
divisible
into four
periods
The
of
history
of
Muhammadan
law subsequently to
ment
of the
by the precepts of
upon which as
their foundation the superstructure 01 the four Sunnf
Schools has been constructed.
The second period extends from the date of the
in
the
words
Muhammad.
of
the Qur'an,
are the
These
or
texts
17
The
first
The other
the
lifetime
Ahadith.
such
cepts,
of
sacred
authority.
His
The precepts
MUHAMMADAN JURISPRUDENCE
18
all
and
precepts and
and, in the
furnished an
His approval
or disapproval was sometimes implied from his conduct.
If, for instance, a certain usage or course of action
When
The second
period
it
has to be
in
Prophet
instruction.
new circumstances
19
right
of
the
Election
of tiie
e e c^
chief of the
community
community
lator in Islam.
As
the
erned
in
down
for
main on the
purpose, the
the verses of the Qur'an and
the
principles
necessity
be gov- Collection
oftl e
already laid
^
of
to
collecting
the precepts and precedents of the Prophet forced itself upon the attention
of the early Muslims.
The texts of the Qur'an during the lifetime of the Prophet had been preserved,
either in the
inscribed
In
large
number
MUHAMMADAN JURISPRUDENCE
20
of the
e ft to
his
Caliphate,
discouraged
of
and
even stopped
traditions.
But
his
'
the
21
of
posed
'
this.
and
that
out
so,
the
then take
to call
so
with which
it
was prefaced.
of
deference.
'Umar considered
this
to
be
fixity
and
this
guided Caliphs
(^yjJi.^1 *Ul^jJI).
'
the rightly-
4
MUHAMMADAN JURISPRUDENCE
22
the different
were
men
it
religion,
principles of practical application.
first act of the Umaiyad dynasty, their successors,
The study
law and
The
of
traditions
during the
Umaiyad
Caliphate
was
of
The Qadi
Commencement
of the study of
law as a
science
still
administered
justice,
latter
days of the
Muhammadan
jurisprudence. The
the
laws
under different
classifying
of
the
use
of
technical
subjects,
introducing
phraseology, and of arranging the different sources of law is
first
agement by
'Abbasides
partly
it
may
be
from
political
motives.
their
capital
23
of
culture
attracted
'
State.
During
this period,
though
Muham- Was
literatures
jurisprudence
of
in
moulding
difficult to
jurists to
It
the
Roman
jurists.
of
the 'Abbasides
that the
The third
eriod
with whose jurisprudence P
Foundation
we are now concerned, were founded. The principles
oftheSunni
of these four Schools are substantially the same, an d
,.~
, Schools
t
they dmer from each other merely in matters of of law
four Sunn!
Schools of law,
to
MUHAMMADAN JURISPRUDENCE
24
scholastic
a de-
scendant
of
disciple
and
is
The
regarded
latter,
great
Imam
as an
as already stated,
of
was
high
and
A'mash,
as the
upholder of
private
judgement
men
of
of
learning.
of
gift of
Abu Hanifa
known
other
nice
detecting
distinctions.
He
talents
lawyer's
possessed
re-
of
and
his
epithet.
sidered
School
Law
(i^UI
(_)*')>
was distinguished
by that
There can be no doubt that he was conof
by his contemporaries
traditions in arriving
at
legal
to
rely
less
upon the
conclusions and
more
'
the upholders
of
the tradi-
traditions
tions
'
known
(ci~)Js5>!) Jj&l).
and those
of 'Iraq
who were
It would not
Hanifa
lacked
however
a sufficient knowledge of the traditions, or that he did
not regard them as a legitimate source of laws. Ibn
Some prejudiced men say that
Khaldun, observes
some of the Imams had a scanty knowledge of the traditions, and that is the reason why they have reported so
few of them. This cannot be true regarding the great
Imams, because the law is based on the Qur'an and
as
'
'
25
them
to
resulted in excluding
traditions
many
which
as
law might
he
felt
be
deduced.
legitimately
It
is
in
said that
traditions
justified
He
it.
doctrine
was the
first
Qiyas or
of
as a principle of law,
operation before his
to give
to
prominence
deduction,
analogical
the
though,
it
time.
distinctive
actual
which bears
in
many
to the doctrines
lit.
preference),
of equity.
An example
to
according
the
Muhammadan
law in order
goods
supply
specified
analogically
a contract
to
to be
be in exist-
price
of
would
particular
be
description
The
invalid.
for
principle
is
a
of
istihsan,
'
Ibn Khaldun
of Ijma' (consensus
'
(Bulaq edition),
vol.
i,
p. 371.
MUHAMMADAN JURISPRUDENCE
26
1
Ijma or
of opinion
the
of
validity
further.
He
age.
and
Abu Hanifa
usages
if)
It
is
laid
down
in
'
Codification
of the laws by ibn
Hanifa
, J
ajid nis
disciples,
and their
works
finished
was
circulated broadcast.
The
entire
code,
With
is
'
'
'
'
Lucknow
edition, p. 116.
27
Muhammad,
known
writer,
Hanifa
was
last
cast
him
and
into
there
ostensibly
prison,
for
the
same
the.
reason,
been, as
believed,
The Muhammadans
time.
He was
not
only
traditionist
but
which exercised
jurist,
in
lifetime.
The
Moors of Spain
influence
his
great
numerous
his
which
still
counts
to
school,
belonged
and
founded
a school
of law
Muhammad,
the disciple
of Abu Hanifa, studied traditions under him for three
His doctrines were not, however, essentially
years.
Malik leaned
different from those of Abu Hanifa.
more upon
MUHAMMADAN JURISPRUDENCE
exercise
the
He leaned
upheld
more upon
traditions
Abii
and the
Hanifa
down by
usage of
to
Companions and
them more largely
their
the
successors,
he
He
in
his system.
attached a preponderating weight to the usages and
customs of Madina, relying on the presumption that
of the
they must have been transmitted from the time
to
a
principle, corresponding
Prophet. He recognized
of
that
that of Abu Hanifa's istihsan, namely,
public
embodied
Madina
welfare
To
(muslahat
iasLa.*)
as
basis
of
deduction.
main
and analogical deduction he would add
the four
Ijrna'
Istadlal
Istadlal is a principle of
a fifth source.
(J^jJLJ) as
to his School does
juristic deduction which according
1
Malik ibn Anas
not come within the scope of analogy.
Abu
Hanifa.
Imam
Malik's
Shafl'i
He was
Muhammad,
the disciple of
Abu Hanifa.
^^
'
Mukhtasas
'
of
'
'
29
'
*
agreed with Malik in adopting istadlal as a fifth source
and rejected Abu Hanifa's equity of the jurist.' He
was the first to write a treatise on Usul or principles.
Egypt
but
is
his
and
and
Madras.
Bombay
Africa,
in Arabia
Among
tures
the scholars
was Abu
also
some
his
doctrines,
other parts of
in India, specially in
'Abdi'llah
Imam
He was
'
Ibid, p. 189.
MUHAMMADAN JURISPEUDENCE
30
One
in
Schools.
'
much
impaired.
But
for
their
(the
literalist)
attained eminence
as jurists.
systems are
if
A new
most prominent
of
whom
are
known
as the
Imams
of
as a source of laws.
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
tion
31
'
of
a place,
its
authority
strengthened.
is
held to
be
proportionately
Bukhari and
Still it is
not to
be
supposed,
because a
Indeed
nothing
has
of
on. ju.riS"
jurisprudence,
though
not,
perhaps,
apparent
at
the prudence
MUHAMMADAN JURISPRUDENCE
32
has been
first sight,
position
of
was
as
tended,
the
of
traditions',
Schools.
jurists
work has
Their
great.
be
to
expected,
strengthen
'
or
of
the
Hijdz,
the Shafi'f
the
upholders
Maliki
and
of
especially
directly
Though
imperceptibly
ence on the
the
to
it
'
'
Iraqi
In
identified.
',
that
name
fact,
it
is
of
has
served to
most
authoritative
support
that
the
the
and
of
their
writings
of the
propositions.
If
Hanafi
we
jurists in
bear in mind
Abu Hanifa
came
into
with
contact
almost
all
the
great
have accepted
reported
or
of
them
seventeen
as
only
eighteen
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
Bukharf and his collaborators. In fact, though Bukhari
traditionists of the
age,
to
is
'
in matters
thought have
also shown an increasing inclination to use those
methods of interpretation and deductions of which Abu
Hanifa was the most eminent exponent. The result
has been to hold them all together as followers of the
middle course '. To what extent the latest phase of
tions
in
making
larger use of
traditions
'
the
doctrine
differences
of
among
serve
stereotype the
the four Sunnf schools by destroying
taqlid
will
to
33
their
most
as of the high-
est importance.
Of the numerous commentaries that
have been written, 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-iAhmadi ', 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 Mull&
Ji'wan, who lived in the time of Aurangzeb. In this
connexion it must be borne in mind that commentators of the Qur'an like traditionists, however distinguished in their own sphere, do not as such have
a recognized place in the rank of jurists.
'
To resume
Hanifa,
Shafi'i
and Malik,
is
rules of law
traced to their dicta, but they were the first to formuUsul literlate the principles of the science of Usul.
ally
means
roots
the
Usul,
is
itself
mostly
and
'ilmu'1-Usul, or
the science
of
name
the
same ground.
we
Unlike
European jurisprudence,
Mr. Holland and jurists
as
conceived
by
particularly
of his persuasion, Usul is not a purely formal science.
While
it
includes
within
its
scope
the
discussion
MDHAMMADAN JUKISPRUDENCE
34
and general properties of law, the application of law to men's actions through the media of
of the theories
and
rights
obligations,
and the
classification
of legal
the
The
Prophet.
what
principle
of
Ijrna'
doubtless
admits
of
of laws
for
all
fitful.
The only other means left of
the
laws
has
been juristic interpretation
expanding
A science of the nature of Usul
and deduction.
uncertain and
which
edge
is
of laws,
Muhammadan
The
fourth
period
system.
mentioned
above
The
agreed in
four
the
principal teachers
theories and
main
of the
in
other hand, applied themselves to the task of completing the work done by the founders of the four Schools,
especially the Hanafi, the Shafi'i and the Maliki,
of
immediate
and
Qadi Khan,
Hijra,
who
disciples,
died
in
to
the sixth
century
of
the
jurists that
35
may
At the
men
to the
science
of
law,
at
in
their fullness.
It
would
be
Schools expounded
mere
pedantry
to
Ibn
others
have
law.
'Abidin
among
And,
lawyer of the present day would undertake to answer
a question of Hanafi law without consulting their
'
of
of the Hijra, is as
MUHAMMADAN JDEISPRDDENCE
36
Writers on
Usul or
science of
law
As regards
Usul,
Shafi'i
is
that
Among
jurisprudence
Abu Bakr
Jassasu'r-Bazi (died
A. H. 370),
Hammam
and Bahru'l-'Ulum
Muhammad
(died
A.H.
Al-Mahalli
(died A. H.
on Malikf
and Qadi
jurisprudence
864),
Ibn
A. H.
Hajib (died
646),
and on Hanbali
(died A.H. 756)
and
'Ala'u'd-dfn
Abu
Bakr ibn ZaiQadi
jurisprudence
Of
H.
their
A.
836).
(died
writings those
dini'l-Khariji
'Udud
vogue,
Al-Usul
'
'
'
Taudih by Sadru'shBazdawi,
with
its
Shari'at
commentary Talwih by Taftazani
Jam'u'l-Jawami'
by Taju'damong the Hanafis
dinu's-Subki with its commentary by Al-Mahalli and
an annotation by Ahmad ibn Qasim called Al-Ayatu'lBaiyinat among the Shafi'is and Mukhtasar by Ibn
Hajib, with its commentary by Qadi 'Udud in Maliki
jurisprudence, are regarded as the most authoritative.
Fakhru'l-Islam
by
'
'
'
'
'
'
'
'
may
on 'Taudih'
'
'
'
'
'
and
'
'
37
III
With
^y
and
of the land
is
to
applicable
the
Muhammadans Anglo-Indian
by the courts
is
concerned courts
the
enforced in all
departments, but in the course of time Muhammadan laws
land
relating to the crimes and punishments, revenues,
transfer
of
and
evidence,
proptenures, procedure,
partly
and replaced by
erty have been gradually abandoned
its
and
to family relations
Questions relating
dispositions
still
Muhammadan
India the
And
law
of
sect of
pre-emption,
Muhammadans
is
also
has
its
any
recognized.
should
be
folthat
own rule,
rule, generally speaking,
lowed with respect to litigants of that sect, as laid
if
down by
1
Pundits.
such
But
for
being
has been abandoned.
experts,
necessary,
v.
'
their
controversies,
legal
l
2 Moo.
I.A.,
441.
5 Cal., 228.
MUHAMMADAN JDEISPEUDENCE
38
of
rights and their status have passed into the domain
in
lawyers, instead of pundits and casuists; and
my
Means
for
ascertaining
Muhammadan
of
Muhammadan
law.
Muhammadan
taining the
In
the
no small
law.
first
difficulty
place, the
in ascer-
Husain
'Ali
v.
'
this
court
possesses
are so
extremely
that
limited
Some
wo'dld attribute
the
phenomenon
to the
'
'
com-
of the system
plexity, uncertainty and artificiality
and
This is an important question
itself.
requires to
be considered.
20 Cal., 116.
12 W.E., 344-7.
MUHAMMADAN LAW
IN BEITISH INDIA
39
The
the
are
treated as part of
uncertainty
is
and
artifi-
generally c i a iity O f
Muhammadan
it does a large
the courts to adopt on such
which are best suited to the exigencies
discretion in
of
margin
points rules,
of
which difference
circumstances, and
particular
the
calculated to meet
of
At
tainty.
regarded
all
who apply
events,
the
by
in this
the Prophet
is
the grace
that
is
how
Muhammadan
the
jurists
matter
is
themselves,
of
'
the
the
\EadduU-Muht4r
',
vol.
i,
p.
50.
MUHAMMADAN JURISPRUDENCE
40
within them principles which are sufficient for religious guidance, as well as for the purposes of civil administration, and any rules which are not covered by
the words of a text are deducible by the application
of analogy
to
some
rule
of
damages
very
little is left to
and
fast scale of
MUHAMMADAN LAW
and thus we find
IN BEITISH INDIA
41
largely
Similarly
part of the substantive law.
freedom of contract and of disposition of property is
much hampered by "'restrictions and limitations, the
treated
as
construe
it
mind
by the
day
and
principles with which he is most familiar, more especially as few people have the time or opportunity to
study the Muhammadan laws as part of a compre-
studied
Muhammadan
way
of
a Difficulty of
uhammadan
original Arabic writings it is not always possible for a
person translating the ideas of Arab jurists into English textbooks
to find words which will convey the exact legal signi;
of
many
technical
'
MUHAMMADAN JURISPRUDENCE
42
'
'
Fatawa 'Alamgfri
But here
guide.
to
way
Hedaya
'
in
any
the
high authority of
depreciate
Hamilton
has rendered
that
Mr.
or
to
',
deny
either
Muhammadan
As regards the
in India by his publication.
Hedaya, it occupies the foremost place among textbooks on Hanafi law and, there can be no doubt that
in fact, one
the work deserves its high reputation
feels at a loss whether to admire most the purity
and lucidity of its diction, tl e scrupulous care and
accuracy with which the legal propositions are discussed, the authorities weighe 1, and the conclusions
law
'
text,
of
'
Persian commentary of the Hedaya especially prepared for him. On doubtful points, therefore, it often
becomes necessary to refer to the original Hedaya ',
and its authoritative commentaries, in order to verify
the statements in Mr. Hamilton's book, and I am
further afraid that Mr. Hamilton's way of stating the
arguments of jurists has at times led to the misappli'
on which
ings
from'
their
modern conditions
tial
justice
10 Oai., 1123.
MUHAMMADAN LAW
in
dealing
with the
IN BRITISH INDIA
question
how
the
far
of
'
43
doctrine
malikana
dealing with
rents,
In
we must
these
many centuries ago in Baghdad and other Muhammadan countries under a very different state of laws
and society from that which now prevails in India
and although we do our best here in suits between
Muhammadans to follow the rules of Muhammadan
;
law,
is
it
often
to discover
difficult
what these
rules
thus
in
as
enunciated,
far
with the
accordance
as
it
root
goes, is undoubtedly
ideas of the Muham-
doctors,
recognized by
ity
to
Muhammadan
jurisprudence in conform-
to
actual cases,
them.
It
learned,
seems
to
must be
the
enforced
me beyond
circumstances
as
question
we
that,
of
entitled
actual
to
life,
Whether
it
relates to
MUHAMMADAN JUEISPBUDENCE
44
administration
doctrine
of
of
and,
taqlid
been
has
justice,
if
to
so,
affected
the
by
what extent
is
but it
question which we shall consider hereafter
must be borne in mind here that the Anglo-Indian
;
Muhammadan
laws by virtue of
and
from the enactpower derived from the Sovereign
ments of the Legislature, and neither the rules and
conditions laid down by the Muhammadan law relating
to the qualifications of Qadis and Muftis, nor all the
limitations on their authority and discretion in ascertaining and administering the Muhammadan laws can
be said consistently with principle to bind the modern
judges. At the same time, however, it is obvious that
the courts must have regard in determining questions
of Muhammadan law, to th-e sources and authorities of
those laws, and to such interpretations of them as are
administer
courts
tion of
analyse the rulings, the results may be thus sumIn the domain of law governing domestic
marized.
the courts have allowed
relations and succession,
Muhammadan
themselves
Administra-
In
the
well-known
with
case
Bazloor
of
Ruheeni
v.
judicial
that
decision
the
law,
the
application of
to them, is to be overridden
11 Moo.
I. A.,
551.
on
MUHAMMADAN LAW
IN BEITISH INDIA
45
relations.
to
right
slay
Mahomed
v.
his
wife taken in
Kulsun Bibi
adultery
In Ago,
'.
',
the estate
of
'
'
'
illustrated
We
Muhamrnadan
25 Cal.,
'J.
MUHAMMADAN JURISPRUDENCE
46
on
the
part of
Sir Robert
Collier, in delivering the
judgement of the Board, had observed, with reference
to the question whether a hiba, or gift inter vivos,
would be valid without delivery of seizin, (page 196)
shan
Jehan,
'
But
also
it
appears
that
holder
of
property
may,
to
certain
It
is
incumbent on
complies with certain forms.
those who seek to set up a proceeding of this kind
to show very clearly that the forms of the Muhammadan law whereby its policy is defeated have been
and add
that
'
:
The argument
of the appellant
did in fact embrace
was not
tin
the
But
The
where the
Judicial
i
Committee
2 Cal., 184.
11
'35
*
All.,
460.
Cal., 1.
25 All., 286.
make
emmore clearly
Ara Begam, 1
principle
the
following
MUHAMMADAN LAW
with
observations
IN BEITISH INDIA
reference
to
the
47
arguments
of
Mahmood,
J.,
in
'
day to follow
authoritative,
logically
when
from ancient
texts,
however
where
mainly
it
authorized
by
Muhammadan
the
object
and posterity
law.
how
It
is
is
far the
not
not
law
here
is
to
madan law
indicate the
is
principle on
interpreted
courts.
i
which Muham-
22 Cal.,G19, p. 632.
CHAPTER
II
scope
the
way
general
Muharnmadan
is
also
'Ilmu'1-Faru',
called
law
the material
of
in
describe?!
of
of
definitions
themselves.
jurists
Definition of
Usnlu'1-Fiqh, which literally means the roots or princiUsulu'1-Fiqh pi es O f Fiqh, is described as the knowledge or science
of those rules which directly or proximately lead to
'
of
appertains thereto, and of the nature of what is established by those sources or authorities, namely, law
As included in the last
and what appertains thereto.'
of
part
lawgiver
(hakim
objectives of law
discussion
the law
.<=-^)
(mahkum
bihi
aj
relates
(hukm
the
to
*=)
-.^-.^^
i.
e.
the
acts,
or
|,j=i^x>)
The nature
Definition of
jjy
persons.
of the science of
knowledge)
ledge
of
Fiqh
according to
what
is
for
self.'
is
thus discussed
understanding or
the knowHanffa, is
(literally,
Abu
(^5)
Fiqh
'
a man's
self,
and what
is
Sadru'sh-Shari'at in dis-
it
may mean
that the
DEFINITION OF FIQH
49
man's
of
knowledge
spiritual
goes on to observe, is
known verse of the Qur'an, for every soul there will
be (that is, on the day of judgement) whatever it
has earned and against it whatever it has earned.'
'
Sadru'sh-Shari'at
sense
cover
to
fail
such
this
as
acts
contracts
which
to
are
spiritually indifferent,
lease and the like.
But
sell,
difficulty,
ated
if
Abu
'
'
profitable
'
'
'
'
by
profitable
and
reward,
be understood
'
'
by
injurious
reward.
it
is
Fiqhu'l-Akbar, or
the
science
of Fiqh,
scope pure questions
of faith which, strictly speaking, are the
subject of the
it
great
its
MUHAMMADAN JURISPRUDENCE
50
science
of
divinity,
and also
abstract
questions of
the object of
ethics.
Fiqh
But
world.
in this
in
current
its
as
Fiqh
'
of the
confined to
is
acceptation
law. 1
of the rules of
The author
as pointed
'
Taudih
the knowledge
which are intended
Shari'at
from.
jurists
'
call
it
the
of the
science
commands
of the
in
to
mere concepts
exclude
of
the
reason or of
the
and
its
Law,
jurists,
(hakrn
is
'that
.<g-L-^.).
which
is
according
God with
'
Kashshaf
'
istiyhf'l-fanun
'.
Muhammadan
established by a
to
',
vol.
i.,
p. 31.
communica-
reference to men's
LAW
DEFINITION OF
demand
or indifference on
The
therefore, of
Muhammadan
or faith, the
constituent
essential
(tasdiq
(tanbihu'1-qalb c^diil
God's authority
act
(fi'lu'1-qalb
JLXJUJ),
classified
is
lall
Jjo),
of
faith,
classed
is
postulate,
or
belief
is
His
of
vjj^aJ)
inherent in
and acknowledgement of
by the jurists as a mental
as contradistinguished
His
is
which
of
first
jurisprudence
in
51
as necessary
is
from
a physical
which
(daruri
the
is
i_y,j.-e)
But maturity
a
of reason
such knowledge
of
man's
for
faculties, to use
is
it
is
when reason
illuminates
the
existence of
One Supreme
Intelligence,
Muhammadan
of
faith
of,
fact,
lead
is
hold
therefore,
jurists,
is
that
In Human reason
although enjoined by, revealed religions.
the contrary view would, according to them, the ultimate
to
revealed
God
life
in
arguing
circle,
necessarily
religions
Hence
for
the
depends
in
truth
on
of
belief
Muhammadan
in for
juris-
who
believe
>
See
in
'
Taudfh
multiplicity
',
p. 418.
of
gods
or
aw
MUHAMMADAN JURISPRUDENCE
52
impute
are
described as
deluded
to be
J^l
Jjbl)
by
instead
implying imperfection,
allowed themselves
passions
desires
guided by the
of being
(ahlu'1-hawa
true voice
of reason.
of
Acknowledgement
and
inseparable from
is
in
His
existence
in
other words, recognition of His authority to issue commands to us is also embedded in our constituIt is further urged that, granted a Supreme
Being of perfect knowledge, and wisdom and of infinite power, who has created mankind and, for their use
and benefit, the world and all that it contains, it would
be ingratitude (the literal meaning of the word kafir
is ungrateful), as well as folly on their
part, not to obey
In fact, the theory of some jurists
Origin of law, His commands.
a covenant
ia tbat
the or i g n o f j aw as crea ti ve of obligations
between
man and God and rights, is to be found in a primordial covenant
(mithaq-i-azali
jU>^) entered into between man
tions.
'
^Jj]
literally,
serves to explain
_j.j!!
Sources of
The
God,
lawgiver
(? A->)
embryo quickens
into
life
and
i
ne Islamic
1
'
system.
Talwfh
',
p. 728.
And
ever since
the
SOURCES OF LAW
53
J^)
revelations
needs and
affairs of
things, calling for the repeal or modification of previous laws. For instance, in the days of Adam and his
One, Divine, Superior Power and Wisdom has, howbeen lost. But it often happened that men
either tampered with the revealed laws or forgot them,
ever, never
for a
fresh
to the will
of
obscured.
It
was truth
in
the
of
Qur'an
is
revelations
Muhammad
in
thus covered by the definition of law as a communiThis source of laws is called Ijma'
or consensus of
opinion. But though in strict theory
the jurists acting in a body only expound the laws,
cation from God.
of
Pmion
MUHAMMADAN JURISPRUDENCE
54
Muhammadan
the
after
from their
collective resolutions.
But a
The
).
it
(la
muthbatun
law rests on
its
sensus
the
is
in
of
ity
is
'
'
merely presumptive
open to a judge or a
(zanni
,.&)> and
it
is
ruling of this category if, in the exercise of his judgement, he holds it to be based on incorrect deduction.
SOCECES OF LAW
must not be acted upon,
It
if
55
be found to be in
it
of a revealed
system.
<
J^c'jJ)
Customs
and usages
The
on principles somewhat
the case of those customs and
of the Qur'an or
the
of
silence
the
Divine
Hadfth,
Legislator is regarded
as amounting to a recognition of their legal validity.
And
as
to
Prophet's
is
as an emanation
case of customary
laws
laws as well.
resembles
Custom
deduction
as a source
one imanalogical
has
no legal force if it be repugnant
portant respect,
to the revealed law, or to the law founded on Ijma'.
It
resembles Ijma' to this extent that the legal character
of a custom has no relation to juristic reasoning, just as
of
in
it
in
is
Ijma', inasmuch as
of
inferior authority
compared
it
is
law.
actions by creating
restraint
ability in
man
on
their
to choose
freedom.
This
to do or not
to
presupposes
do an act, namely, the existence in him of will-power
It is by this characteristic that laws,
(ikhtiar .Lwi.]).
MUHAMMADAN JURISPRUDENCE
56
which
are
the subject
of
jurisprudence,
are
distin-
The scope
fa
which
of law,
is
indicated by
our instincts
ception of law.
There are four
j
n oar
for
The
our guidance.
instincts
of
self-preservation
of
in-
subject.
is
the
to the
The
control
implied by the
of the
expression
communal
life,
relation
of
social
instincts
the individual
With regard
law
is
attain
to
man's
the discipline
qurbat
(<L
after
side of
progress.
J) or nearness to the
Perfect Being.
Bights and
obligations
function are
So
far
as ,the
rights
The two
generally
speaking
(wujiib
correlative
57
terms.
to control in a particular
whom
against
it
exists,
way
the
according
many
jurists
ibahat
(.usJj]),
or
per-
Muhammadan
in the
far
to
less
commands
that
those
to
whom
they
are
addressed
should
act
or
that
certain
in
particular
way
in
certain
matters,
not,
additional
and
this
is
provided
of
for
by
another
and
the
expression
lawgiver's will to that
effect, though it is not necessary that such expression
should be by a separate speech. For instance, the law
says
',
'
MUHAMMADAN JURISPRUDENCE
58
own
your
labour.'
the
if
if
give
a certain
sum
educate their
may
of
money to
The
children.
',
nevertheless create a legal obligation, as it is an obligation imposed by the lawgiver, and none the less so
no
because
attached to
its violation.
that a contract
declares
magistrate
is
whom
therefore,
madan
jurisprudence.
Injunctions
which are
capable
The question
of being enforced are of a limited class.
of the enforceability of laws forms the subject of
the administrative branch of the law, while it is the
function of law in
its
Since
spiritual
the sanctions of
Muhammadan
benefit
and
encourage obedience by
social
Muham-
modern European
its
offer of reward,
policy is to
to discour-
and
APPLICATION OP
LAW
59
Muhammadan
In
its
application to
a
j u
iu
i-i j.c
xnot anected
by the constitution of a particular
This is because the authority of law,
political society.
it
4.
is
Muhammadans,
n
Thus,
Muhammadan
if
goes
from
one
State
to
Having regard
prudence, law
do not believe
the theory of
Muhammadan
juris-
and
protection
own
lives
they
are
not
hostile
willing to
submit to
necessary
for
Muslim
State,
But
privileges.
they should
on this earth
that
pleasure
its
as
(harabi)
its
it is nevertheless His
allowed to live their
they please,
to the law,
authority in so
secular
far
If,
therefore,
upholding.
the protection of a
under
lives
the
be
portion
of
the legal
provided
and
as
are
it
is
non- To
Muslim non-Muslims,
a
code would
not
who do not
The right
affairs
to
community
its
Caliphs.
The Imam
or the Caliph
MUHAMMADAN JUEISPRUDENCE
60
upon
it
whether he
his
pleasure
depended
submit to the decrees and sentences of the
The Muhammadan law does not
courts or not.
concede to any individual any of those powers and
prerogatives which are ordinarily the essential attripractically
would
Sovereignty
butes of sovereignty.
In the Muhammadan system sovereignty primarily
belongs to God, but as He has delegated to the people
powers of legislation and of absolute control over the
administration,
it
The State
to
God
the
would also
people.
sovereign power
Muhammadan
law
does
not
that
the
admit
appear
of the sovereign power being dissociated from the
people however they might choose 'to exercise it.
The law seems to contemplate that there should be
a single Muslim State, and that the Caliph, as its chief
resides in the
It
Imam
the 'Abbaside
Caliphate,
Muslim States
different
units,
Imam
or Caliph.
declaratory
laws
of
'
'
and
Law-
giver assumes the form of a demand it may be absoIf the former, the demand
lute or not absolute.
may
consist in requiring men to do something in which case
the act
or
it
demanded
may
require
is
him
to forbear or abstain
j)
from doing
CLASSIFICATION OF LAWS
61
or
1
i
and
j.jJL* /),?
V
from
it is
(rnakruh
if
it
called
3.
or omission of
in other
indiffer-
ent, is
All acts
which are neither obligatory, nor forbidden, nor commended, nor condemned fall within the last category.
Laws which thus define the characteristics of a man's
acts, namely, whether they are obligatory, forbidden,
condemned or permissible
or indicate the
legal
effects
of
for
acts,
are
in
called
ling),
which
Arabic
or indicate
define
taklifi
(
'
have translated as
called
declaratory
meaning.
elements
facts
of
(.^e^
'
or
Laws
of
as
',
lit.
control-
extent of a man's
the
lated
JyJ=u
upon
The
the
which
proximately
it,
or in other
other class of
definition
I
have trans-
conveying
are
its
component
of
ment
of the
tion
of
the
formula of divorce
marital
is
rights and
proprietary
and
extin-
of
the
MUHAMMADAN JURISPRUDENCE
62
Similarly
property to its owner or to pay its value.
a declaratory law tells us that maturity of understanding is the condition of a voluntary disposition
such as by hiba, will or waqf.
Laws of
perfect
and
imperfect
obligation
Laws having
are
forceability
(1)
existence
vidual
to
regulate
one another.
in
men's
this
their social
their
world,
relations
to
and
and
object
dealings
indi-
being
among
is
necessary to the preservation of humanity, their enforcement has been delegated to and is made incumbent
on the community.
(2) Laws which solely concern
the spiritual aspect of individual life, though some of
them may relate to worldly transactions these are
;
God
means
rewards
and punishments.
Laws which mainly concern
(3)
the spiritual aspect of individual life, but also affect
enforced by
alone by
Muhammadan
the
communal
of spiritual
life
in
its
religious
transfer
of
making atonement.
To
of
Kamadan
may
enforce by
means
of disciplinary measures.
it
says
the Shari'at as
:
regard to
In sum-
are
intended
to
be acted upon,
as
CLASSIFICATION OF LAWS
already stated.
taining to the
These laws
relate
to
63
matters apper-
world.
the
Of laws of the
continued
latter class,
men
existence of
some have
as
view
individuals, and
in
are called
is,
relating to domestic
and to punishments
relations
('uqtibat
continued existence of
respectively
life and as
vealed.
their
men
natural place
in
the scheme of
members
of organized society. 1
regard to the sources of our knowledge of
Revealed and
some laws are revealed and others are unre- nrevealed
^
Laws, which are to be found in a Qur'anic
Having
the laws,
to
(munakahat c^>U^='J&)
cubyk), have in view the
discretionary
is
tions
made by
compel
upon
spiritual
liability
if
it
happens
'
to
be wrong.
Talwflj', p. 093.
jurist
or a
MUHAMMADAN JURISPRUDENCE
64
Qadf
is
make
free to
juristic
(d&jlyla-l)
his
law,
own
deductions in matters of
while
so
as
far
laws based
on a
of
phet's
lutely
such traditions
is
is,
laid
down by
it
Laws based on
for
it
open
to
jurist
laws
genuineness.
traditions
is
may
to
contest
based on
In that sense,
be said to be discretionary
their
isolated
like
laws
and
modified
j
aws
Muhammadan
n o
j.
s t rj c t
III.
CLASSIFICATION OP LAWS
65
and the
based on texts or on
common
to the
rule,
is
strictly
relaxed
equity,
in existence
at
is valid
sion to
case
a salam
which
it
of
sale of
is
in the
which
(J~.) sale,
is
a contract for
This
sideration of the price paid to him in advance.
modification of the rigour of the law in its original form
is perceptible in all the departments, and has both a
spiritual
point
it
conform
From
considered more
and in
tions.
have
already adverted
to
the
division
of
laws Interpretive
interpretive
whether in
laws properly
Muhammadan
so
called.
It
is
doubtful
MUHAMMADAN JUEISPfiUDENCE
66
properly so called.
such rules is, however, to
be distinguished from authentic interpretation, that is,
interpretation of a Qur'anic, or traditionary text by
Interpretation by
means
of
undoubtedly law.
There are some texts of the Qur'an, and the TradiRepealing and
amending laws tions which have either bsen totally repealed, or their
modified by subsequent texts.
hold
that
Many jurists
repealing and amending laws
the
to
belong
category of interpretive laws. They
that
when
certain laws have been promulgated,
argue
limited or
application
the original
text
is
to
have
a modified
or
can be
application.
Only a revealed law
limited or modified by another law of the
One
juristic
limited
repealed,
same
class.
be repealed
because of neither of them
or modified by another,
can it be affirmed with certainty that
to
it
is
correct.
and private.
They divide
into
of
God
and
rights
rights
rights of men
(,jd]] J%-)
the former corresponding to rights of the
(j'o*!) J)i-) ;
selves broadly into
public
of
the
rights reside in
community
individuals.
or
public
For
rights
instance,
private
the right
CLASSIFICATION OF LAWS
67
from
rent
ceive
crimes
tenants.
the
The
re-
punishment
of
is
That is to
thinks
the
State
which
wrongs
or satisfaction.
exact restitution
say,
to
fit
which
for the
individual
wronged
to
of
for redress,
Muhammadan
tion
of
law,
of
it
jurists,
having
men
is
to
Law of persons
for the
Under this
rights and the discharge of obligations.
head they discuss the legal capacity of infants, lunatics, infidels, slaves, sick persons and the like.
The Muhammadan jurists do not recognize laws of Law of things
not a separate
things as forming a separate and independent juristic
division.
Laws, according to them, are concerned
with the acts of men through the juridical medium
of rights
and obligations.
Often such acts have
and
reference to physical objects but not always
the law does not deal with such objects except as
property ', that is, things over which men exercise
acts of possession and enjoyment.
The law of evidence in the Muhammadan system Law of
falls partly within the scope of substantive law and evidence
partly of adjective law. The right to give shahadat
;
'
(ijl^i)
or oral testimony,
is
a question of capacity of
On
includ-
is
to enable the court to asing oral testimony,
certain the truth with a
view to enforce rights
%
and obligations.
in
Muhammadan
to
addbu'1-Qadf
magistrate.
Law of
The Law
(.<<5U!1
of
j'jT)
or
the duties of
the
MUHAMMADAN JURISPRUDENCE
68
Constitutional
Constitutional
is
law
this
system
Muslim
Muslim
is
State
law in
CHAPTER
III
SOUBCES OF LAW
PART
SECTION
THE primary
system
of
is
L'j).
Muhammadan
laws in the
of
revelation (wahi
o^)-
manifest tzahir
two kinds
cations
source
GENERAL
Kevelation
Jb'Ji)
and internal
(batin
communi-
Muhammad
(2)
by
hints,
mind
either
and
(1)
in the
(3) of
such
the Prophet
through the inspiration (ilham J.^)) of God. Internal
revelation consisted of the opinions of the Prophet
knowledge as occurred
in
the
of
internal
revelation,
are
known
as ahadith (plural
of revelation,
The Qur'an
70
MUHAMMADAN JURISPRUDENCE
Prophet
would
exercise
his
own
judgement
and
If the decision
frequently consult his Companions.
he arrived at in this way happened to be wrong, God
to set
it
right.
is
chapters,
composed
of
actually
arose
for
decision
some
in
order
to
71
settling
on an
of
rights
ity
minors
and some
ment
basis,
equitable
for
the
fed
lay
succession
of
question
inheritance
providing protection
other persons under
down
purpose
and
the
principles
of
for
the
disabil-
punish-
of
Suratu'n-Nisa',
Suratu'n-Niir,
The Qur'an
Ali
'Imran,
Suratu'l-Ma'ida,
Prophet's
is
own
language.
One
result of
this difference
certain
verses
valid.
But
of
it
which
is
held to be mutawatir
jLju), that
is,
proved
Such testimony
ac-
or error.
or six
for
MUHAMMADAN JURISPEUDENCE
72
The age
in
which the
m ore
is
its
genuine-
divided into
had
lived
or, briefly
speaking, Companions.
third age
of
successors
the
Companions
or,
shortly
speaking,
^^fxj'o jjo).
Traditions are grouped into three classes according
Classification
of traditions to the nature of their
Such of them as, have
proof.
according to rece j ve(j universal
and
acceptance, having
publicity
lseen related bv an indefinite number of men in each
continuous!'
well-known
and
isolated
one
of
the
three
as
to their
The next
class
limited
and
tradition.
(mashhur
fulfilled
They
^>)-
are
The
number
thereafter,
the
i.
of
Com-
e.
in the
conditions
called
of
well-known
nated
isolated
'
These
73
latter
jurists is so
able
far
base
to
guaranteed, that
rule
of
the
known
kind
narrator
(<_fjl.)
as
must
information
fulfil
of Qualifications
or
testimony, the
the essential conditions of
them
in his
memory,
a reason for
Muslim
of
eligibility,
giving preference.
but only as
must be
Thirdly, he
The reason
of law.
mony
the
10
qualifications of
a narrator, the
reported
authority
of
tradition
by
of anarrator
MUHAMMADAN JURISPRUDENCE
74
Narrators
For
him.
instance, a
'
man
narrating a tradition
may
havconnexion (ma'ruf
well-kuown, or be well-known
i_J^yt-c),
obscure, learned j
ng re ported many traditions, or he may be 'obscure'
'
in law, or
otherwise
(majhiil J^;sjx>)
in that
the
'Abdu'llah
Mas'iid,
ibn 'Uniar,
'Abdu'llah
ibn
Huraira's
is
who
Abu
it
on
of
Anas.
his authority, or
panions
If
it
all.
an important matter
also
is
for
75
consideration, Connected
and
disconnected
complete and
reaches the Prophet or not.
Sometimes the absence
of such connexion;" is apparent on the face of the
whether
chain
the
narration
of
is
'
'
or
disconnected.
disconnected narration of
is
Companion
of the
for
regard
as
accuracy,
well
and of successors
disconnected
of the
third
as
reports
of successors
tradition
period
is
narrated after
the
by
expiry
some
Hanaff doctors.
Sometimes on the face of the report itself the chain other
of authorities may be completely set out, and yet the objections to
law may consider it disconnected and refuse to accept it a tradition
as authentic because of certain infirmative circumstances.
For instance, the narrator may not possess the necessary qualifications, or the tradition itself being of
the class of isolated may be contradictory of a text of
the Qur'an, or of a continuous or well-known tradition,
or
it
There
may
again be other
objection may
conduct.
own
k)
objections
literally,
to
imputations.
report
Such
76
would not be a
the
be
tradition
sufficient
to the
to
objection
one relating
to
Companions
its
validity,
matter
of
if
rare
occurrence.
Mode
of
transmission
The next
JJ
me
'
'
(akhbarana
U.Ai.)).
The way
in
which
is
traditions are
by means of
Traditions
What is of great importance with reference to the
which report
mode of transmission is the question, whether the
the very words
of the Prophet verv words ot the .Prophet have been reported, or only
and those that their sense and substance. If the very words are
do not
reported such a tradition, the other conditions being
the jurists, even
satisfied, will be accepted by all
if
its
If the
of jurists,
meaning
is
it,
;
language
some jurists
The majority
provided
its
and in their
whether the
this
sort
construction
is
;
in
reported
for instance,
if
words
INTERPRETATION
application (khas ^li.), or words of
are
JL*!-^)
(haqiqi
77
primary meaning
are
capable
of
was
as
it
is a binding authority.
So far
a source of laws, the practice of the Prophet is
relevant when it involves decision of a question subis
imposes liability pure and simple, its reporter must possess all the qualifications of a witness,
both as to fitness for giving information and for
if
fixing
Some
dicta
of
jurists like
Abu
the
SECTION
I
now
which
II
INTERPRETATION
in the
inter P retati
subject of jurisprudence.
According to Muslim jurists
interpretation of a legal text is governed substantially by the same principles as other questions of
MUHAMMADAN JUEISPEUDENCE
78
interpretation of
conduct,
which
is
called
tion, or,
if
tradition
its
tradition to be genuine.
of a private individual
is
mainly
concerned
We
with
Words with
Words classified
with reference
application to
sions>
convey meaning
tion,
of
cer tain
havin g regard to
for
instance,
(1)
whether
specific or general
such as
or
made
ambiguous or doubtful,
that is to say, whether the meaning of the proposition
which they embody is manifest, explicit, explained, and
so on
and (4) the different ways in which the meanis indicated.
words
of
ing
meaning
is
clear or left
Homonyms,
general and
specific "words
(i)
to
A word
many
cJyLl^)-
which
things
is
is
called
'
'
spring
may mean
INTERPEETATION
includes
called
word
general
which
to
everything
it
(fir).
79
is
applicable,
it
is
'
'
c-|i ^
munakkar,
'
the sentence,
word
is
-><x-),
applied
'men'
saw men
the
in
When
street.'
in
number
of things, including
everything to which
can be applied, say one or two or a hundred and so
A specific
on, it is called a specific word (khas
it
(_*Ai-)-
word
human
being.
If the
the
root
while retaining
original form,
Calam
Jlc)
(u~**-
otherwise,
it
is
a generic
called
I*-!)-
is
lute
called
If
(mutlaq
applicable
it
is
are
If
^U)-
things,
it
is
If
it is
is
called
the
all
included,
it
applied to
minate,
otherwise
jlk),
(muqayyad jJiA).
('am
noun
it
is
it
things
called
applied to only
particular
some
is
is
to
limited
which
it
is
a common noun
some determinate
not
ii
if
deter-
MDHAMMADAN JURISPRUDENCE
80
Specific
They
words
establish
an absolute
proposition
establishes
'
Zaid.
Force of then
in a Our'anic
t
divorce
t'
et
The word
Take another
..,,...,.
m
P ecmc m
illustration.
1S
S1 g ni iy
o sequence.
Qur'an, for instance, lays down: 'Divorce may be by
two sentences, then you may detain them (meaning
the divorced wives) in a proper manner, or let them
go with kindness. It is not lawful for you to take
them
from
law
laid
them
those
husband) divorces
her and the first
again
(i.
e.
marry each
to
if
there
is
other),
be able to observe
they will
God.
then,
her,
of
lawful
for
the
parties
to
agree
money
or
husband.
1
that
tie,
the
wife
shall
in consideration of
Tafsfr-i-Ahmadf, p. 130.
INTERPEETATION
husband
81
pronounces
be lawful for
him
holds
that
after the
sible as
that
is
its specific
They hold
meaning.
that
word for
Force of for in
(*'jJI)
a ur anic text
denoting the idea of exchange. Therefore Q
in the verse of the Qur'an, 'seek
(meaning a wife) ferSSwwp**
your property', the word for being specific settlement
of property by way of dower on the wife cannot be
'
is
specific as
from a marriage.
Hence, if marriage is
contracted on condition that there shall be no dower,
the wife according to 'the Hanafis will still be entitled
dissociated
When
wife would
to the Hanafis,
is
Hence according to them a general According
applicable.
to the Hanafls
text of absolute authority cannot be limited,
except by
rds
another such text. The Shafi'is say that a general
it
JJJJ"^
to
which
fo
is
apph
them, be limited by a tradition of isolated origin or by
analogy. According to some jurists, when a general
word is used one should wait to see, if there be
any
authority to show whether everything to which it is
1
'
'
Tautjih
',
Tamjfh
',
11
pp. 31-2
p. 32.
'
;
Tafsir-i-Ahmadi
',
MIJHAMMADAN JURISPRUDENCE
82
is
applicable
of conflicting
texts
number
at
three, for
least
Interpretation
mean
be taken to
to
is
it
plural
is
the
is
will
prevail.
may
have
least
It is
such
of
plurality,
down
laid
(women)
'
in the
as
Qur'an
your
right
or you
hand
has
',
'
girls,
ing two
sisters
1
tive text.
Two
apparently
conflicting
propositions
ought to be
reconciled
if possible
Sometimes
it
may
be
possible
Baqara
it is
down
laid
again)
for
four
'
:
to
reconcile
In the
two
Suratu'l-
restrain themselves
(from marrying
while in the
',
down
Texts relating
Suratu'n-Nisa'u'l-qasira
to 'iddat
of probation for
it is
laid
pregnant women
is until delivery.
'AH
remotest
'Taudih',
p. 33.
INTEBPEETATION
Ibn
Ma'siid,
first
is
to the
83
opinion that
extent to which
of
as
possible.
position
is
imposed
by
Hanafis,
if
as
to
to
the
they
special
proposition.
cannot be reconciled
According to
then the rule
contradictory
by
the other as
is
The
inconsistent therewith.
difference
is
general proposition, as
the second so
much
of
it
as
is
^*iaj),
holds
still
to say,
it
will
while in
good will be
or specification (takhsis
^.x^i^;)
'
Tavujfh
',
'Talwfh',
When
p. 34.
p. 79.
the qualifying
MDHAMMADAN JURISPEUDENCE
84
independent
is
Qualification
by a dependent
clause
(*LuU), a condition
exception
(is^i)
or a quality
(ii-c)
the
of,
original
of
effect
of the
Qualification
by an
independent
speech
When
general speech
itself,
limitation
of custom,
light
word
is
than to
and
less
from the
or
appropriately
others.
certain
obligations
is
that the
general
Examples
from the scope
lunatics
fact
law
the
of
dictated
by
our
imposing
reason
as
'
'
word
'
'
slave
is
not
altogether
Effect of a
qualifying
dependent
clause
and
it is
is
qualified
if
what
from
entitled
its
purview
to
use of the
in
con-
by a depen-
not so qualified,
excepted
speech will
appropriate
its
is
eaten
'
'
That
is
it
is
retains
to say,
something
INTERPRETATION
definite, the
rest
as an authority
otherwise if the
85
of
nature.
absolute.
There
is,
extended
But
by analogy.
subsequent
in
date,
it,
if
being according
to
be
Hanafis
partially repealing,
qualificative, the
it
is
'
illustration.
for a
and the
limitation
will
'
be
Talwih
treated
',
p. 88.
as
an
exceptive
MUHAMMADAN JUEISPEUDENCE
86
unascertained
clause
of
person
sells
Similarly, if a
dies before
operation.
them
of
money, death
repealing as
were
it
the sale
of
the
other.
Examples
A word may
of
general words
(sigha
<Ujwc)
it
whole,
'
'
the word
then
'
the word
e. g.
cable,
'
dirhem
',
whoever
dirhem '.
'
Plural
number
denotes
at least three
whoever
community
whom
come
will
',
or as inclusive of
of substitution
or by
way
will
corne
to
me
he
first
thers
',
share
mother
the
word
preceded
by the
or
more
one-third.
as reducing
the
Similarly,
two
as three or more.
When
If
Force of a
to
relations
plural
mean two
brothers
of
of
them
they will
the
it is
'
a word in the
'
the
and
applicable.
Imams
Quraish.'
cates that
tribe.
It
it
is
(are
Here the
all
the
was on
Imams must
this
who gave
shelter
to
1
'
'Imams'
indi-
Talwih
',
p. 95.
INTERPRETATION
when he retreated to that city)
Abu Bakr to the Caliphate
at the
87
time of election
of
article
the
The
'
and
form, without the definite article precedindeterminate
ing it, is in its legal effect like a general term. Thus, plural
were to say
if a person
my slaves are free men ',
There is some
all his slaves would be emancipated.
L-JJ*.*) plural
'
has the
majority of jurists
has not.
it
singular
if
(jT),
it
produces
is
',
An
'
'
import
general
'
instance,
so',
says
men
will
not keep
he would
learned men.
',
be
'
company except
entitled
Tatujfh
',
to
p. 46.
associate
of
learned
with
all
MUHAMMADAN JURISPRUDENCE
88
Whoever
(^1)
'
or
whoever
'
when
it
is
for example,
clothed with a quality, becomes generic
whoever among my servants will beat you,
a man says
is free ', if all the servants beat the person addressed
;
'
they will
He who
be emancipated.
all
or
he who
is
specific in its
(^*)
in
a conditional speech it
application, but when used
has the effect of a general word. Example,
He who
enters the house of Abu Sufyan is safe ', all persons
who seek refuge in his house will be safe.
'
'
'
'
That which
or
'
that which
'
is
properly speak-
'
if
art free
',
'
'
'all that'.
All of
and
The words
them
all
J.^>) or
jami' (*_j.,o.-) or
'
them'
of
'all
and
'
kull
word
or
kull
all
to
whom
the
connexion
the
whole
enter the
and ten
is
all
terminate word,
it
word
is
of the individuals
applicable and,
A man
body.
fort
men
for
first,
'
says
them
all
is
so
if it
be used in
would mean
it
who (^
much money
',
enter
it
'
'
'
would
persons
tween them.
share
the
amount
mentioned
be-
in
it
the
INTEEPEETATION
From
this fact
it
prayers
generally
erogatory and the
whether obligatory,
On
like.
ascertained 'from
be
to
89
the
other
other
hand,
sources, such
superit
as
meant
has
by
or
When
.,
of its being
'
'
'
'
'
particular question,
hand, when
man
is
absolute in form.
'
says:
On
If I take breakfast
',
the other
with you
it
its
In the
tion
first
three of the above illustrations the proposias relating to the facts involved
must be construed
last
will
presumed
to
rence or inquiry.
12
occurrence
MUHAMMADAN JUEISPBUDENCE
90
it.
And he goes on to add that
Companions and their successors accepted, and
acted upon rules of a general applicability, though laid
down with
rence. 1
Possible
is
the
tion
proposition
is
statement of
But
the wording of a
account, the
the facts of the case would be superalone
to
is that, if
be
taken
into
it
is
by the
<Tan4fh', p. 55.
-Talwih,' pp. 121-2.
INTEKPEETATION
91
extravagant.
The
absolute
and a
An
a case
qualified
laid
down by one
down by the
them be
of
distinct
be given to
both.
Feed a man,' and
For instance, a man says
Clothe a naked man.' In the first case there
also says
is no qualification with respect to the man to be fed,
is
laid
'
person to be clothed
must be naked, and since what is intended by each
of the two commands is distinct, both should be comWhen two such speeches convey the same
plied with.
with reference to two different matters,
but
injunction,
while in the latter
in that
But according
the absolute proposition must be read as
to the
the
case
In the
qualified proposition.
of
to the
effect to.
subject
'
tion
of
household
lim
is
to
is
Shafi'f,
according to
buted
only
for
such members of
Muhammadans.
injunction
of
of the household.
the qualifying text controls
that alms are to be distri-
whom
text, holds
the absolute
are
that
alms,
If
two
texts
the
household as
relate
to
single
facts,
MUHAMMADAN JUBISPBUDENCE
92
then
to
according
all
three days
to the
for
and it is
same event
terms
also
',
ference
its
For instance,
one must fast
'
for three
'
'
slave
is
far as
of words
convey
Use
to
possible.
A homonym when
Construction of
homonyms
to
is
used in a
proposition
is
to
be
application,
in
JMLJU&.)
is
(j-jj)
word
nikah
ment and
so on, and
it
if
is
Proper and
secondary
or tropical
use of words
word (majaz
legal,
conventional,
and technical
meanings
Some
in
connexion with
its
original appli-
is
Dictionary,
jUj-o)
writers
wrong.
The
'
Tavujilf,'
p 57.
INTEBPBETATION
it is
((_j-yil).
93
application and,
connected with
-that
it,
is,
to
convey a legal
.2lLcl)
(..c.^),
it
meaning,
word
is
transferred from
its
dictionary
meaning
to
cation,
to
it
at
generally dominates
its appli-
word khamr
in
its
thereby,
what
is
called its
to be inferred therefrom,
(mafhum
If
,jyu>)-
it is
noun be used
was invented,
it
(musamma ^i^).
it
is
called
to
if
its
it
be
sense
denote the
called its
name
p. 141.
MDHAMMADAN JUBISPEUDENCE
94
intoxicant
is
of the
when
It
^...4.)
sometimes hap-
when
name
the
of a
thing
is
or
word
Jia
j),
applied to denote
its reverse.
use of a word.
ward
when
the
name
of
the whole
speech
sends
(iiAxU).
heavens
'
He
food
your
',
(God)
what
is
food.
meant
acts
When
a brave
of
piety
man
of
is
which
faith
is
the condition.
latter
word
is
Legal
expressions
used in a
proper or
secondary
sense
Hence
INTEEPEETATION
95
may be
effect.
husband
is
lllrtil 1
IctgC
'I accept'.
of
legalized
of
namely, preservation
descent,
restraining
alone
the
a specific
species, the
of
men from
debauchery,
word marriage, or
reasons
for
its
equivalent (nikah
re-
of a legal effect
may A word
For
instance, the
word
sale is designed to
^f ^ ^
'
'Tau<Mh',
p. 71.
MUHAMMADAN JURISPRUDENCE
96
true,
but
view.
in age,
'
my
this is
son
',
sense,
it
could
not,
possibly, be
correct.
It
not
is
used in
its
tropical sense
to be
arv an(j no t
the
the
rule.
in a second-
,.
circumstance
make
',
if
'
the expression
some would
'
'
when
'
'
'
an emphatic expression.
statement to the
'
effect
'
:
INTEKPRETATION
mean
necessity,
97
eat
of
fruits.
its
means dispute
or
is
quarrel
to
be
understood in a
gle
sentence
only a sin-
or speech
may
into
it
brought
existence.
the application of a word be such that the inten- plain and allution of the speaker is disclosed thereby, it is called sive words
otherwise it is called a metonym
plain (sarih
If
^y<7)
or
allusive
original
impaired,
is
thereto.
Similarly,
if
word,
the tropical
applica-
tion of
as
with reference to
its
original
application.
When
that
when
kind, he
meant,
fails to
disclose,
while this
made use
quiring
of
and
to
make
clear
what he
when he has
plain expression.
Legal
certainty in their proof, such
matters reas
offences
entailing
13
'
Talwlh
',
p. 233.
MUHAMMADAN JUKISPRUDENCE
making an admission of such offences in
which
are not plain, would not make himself
words,
liable to such punishment.
a person
When used in
writings
M r<
^xOL*)
Writings, which are legible but not in the customary and regular form (mustabinun ghairu marsuniin
such as engravings on a wall or a
/>?.* .J-i -j^"--*)'
(2)
binin
juGLj..*,
air or water.
Gestures or signs
dumb
(isharat
makes no
same
to
of
footing as
an
allusive
the
accepted opinion, it
difference whether such a person is able
and,
speech,
cul.Lij)
all,
according
1
to write or not.
The meaning
words
may be
of
The meaning
III.
be
may
disclosed
the word
closed
is
of a
or
word
said
explicit,
of
room
it
^ai)',
if
it
is
is
it
dis-
it
is still
it
is
further disclosed
regarded as clear or
is
no
of limitation,
is
(nass
for exposition
When
be apparent or manifest
to
manifest,
unequivocal,
or fixed
in a passage or sentence
concealed.
'
Fatdwa Alamgiri
447-9
'
;
'
i,
pp. 533 i
'
;
Hedaya
INTERPRETATION
possibility of repeal is precluded,
or unalterably
fixed
(inuhkam
99
said to be settled
it is
<
~~^
?)-
For
instance,
legality and illegality respectively of the two transactions are concerned, and is regarded as explicit in
distinguishing riba from a sale.
Similarly of another
verse of the Qur'an, namely,
two, three and
'
four
marriage
'
what
repeal of
'
',
because
fixed,
is
so
laid
down.
the
so
Qur'an,
them
meaning
of a
but
If
of
application though
an extraneous circumstance,
^Li-)-
its
it
called obscure
is
word be obscure
of
meaning
in
it
of
khafl
The meaning
m ay be
itself, Difficult'
j=x^4)
the
if
meaning
of
word cannot be
of
be discovered at
all, it is
another
if its
text,
disit
is
meaning cannot
bahi *LiJA).
pickpockets
is
concerned,
the
the Qur'an,
'
',
riba
MUHAMMADAN JURISPKUDENCE
100
is
it
applied to
of
Examples
unintelligible
words
may
its
be
scope.
furnished by
are
when
calls
it
Men
is difficult,
must be stopped.
Words
it
do not ordinarily
any
language
ordinary sense and,
must
be
understood
in the ordinary
words
therefore,
sense unless the
that
sense
unless
the
context
shows
they are used
context
in some other sense.
Sometimes the context serves to
requires
a different
make it certain that the language of a text has
interpretation been used in its
ordinary sense.
to be
interpreted in
their ordinary
Absolute or
certain text
of understanding
possessed
use
but
in
text
senses
is
when
first,
with regard to
its
secondly, when
being cast on
it
its
and
of a
word
indicated
in a sentence
is
two
unalterable
meaning
If a text
if
is
absolute
in the
factory to one's
the meaning
in
first
sense,
it
The different
ways in which
.yiaj)
it
reasoning.
its
IV.
A word
knowledge
mind ('ilmu't-tamaniyata
conveys
its
meaning
satis-
<ujJLc.y) J,e)-
either
by denot-
INTEEPEETATION
Such
)-
by the language
directly
or
by
indirectly
(isbaratun
of
expression
of
Sometimes
jj.Li}).
meaning may
be
ii.Uc)
connotation or suggestion
of
^jvay
101
word
may
indicate
something which
implies
as
it
is
applies
to
comes within
its
'
'
is
a shave in the
m
.
,1
men who
be predicated of the
connotation
of
meaning
their right to
'
exist.
children
the
',
language
means
application
obligatory on the husband. It also connotes that the
maintenance of a child is obligatory on the father,
for its descent is imputed to him.
Again, as the child
is
imputed
to
the
father,
the mother gives birth to the child for the father, the
text also suggests that the latter has a right to the
child.
But as
the child
itself,
it
is
own
A man
for
are
MUHAMMADAN JUEISPBDDENCE
102
should
paying the
emancipate
sary,
condition of a
action
so
many
necessary
man
a
'
'
'
nevertheless have
the
effect of
is
a single or revocable divorce.
that the wife not having, in fact, been divorced at the
and not
are concerned,
the divorce
is
words
them by
established by
divorce
other hand, if a man were to say to his wife
is
attributable
to
the
divorce,
result,
thyself,
namely
'
his words,
Intendraent
or mischief
of a text
ds)-s*>)-
The Qur'anic
uf
'
(.^it
an Arabic exclamation
of
anger or contempt),
INTEBPKETATION
103
is
interpreted as prohibiting the beating of parents,
because the saying of
uf
causes pain to the person
to whom it is addressed
and a fortiori so does
'
'
What
striking.
is" established
intendment of a
text,
as
within the
falling
matters
ment
like
of a text
It
is,
however,
absolute
When
an
it
imply
other
negation of
matters
for
;
Muhammad was
there
was no other
is
affirmation
particular matter,
is
prohibitive
Shafi'is,
when
the contrary.
to
text
refers
a thing specified
not apply to anything
The next
their
subject
for
The Hanafis,
is
how words in How words
commands of law, in their
inquiry
rise
application
But according
to
to
give
a
declaring an act to be obligatory, forbidden, PP!ication
A law may be expressed
permissible, and so on.
such
as,
in
such
be
asserted
a
'
giver says
form
of
',
information
l
or
narration
(akhbar
,U-I),
so
MUHAMMADAN JURISPEUDENCE
104
that truth or
falsehood
be asserted
may
with
re-
the lawgiver.
A proposition of law stated
the form of narration is regarded as even more
wise of
in
than what
authoritative
is
',
'
'
this
Imperative
words
'.
or
other
relevant
that
circumstances,
make
it
obligatory,
in
other
mandatory. So
'so you hunt
to
be
for game', hunting is intended thereby
permissive.
Some jurists say that the mere use of an imperative
words,
also
as
when
being
it
is
directory
laid
and
down by
not
a text:
were
so,
there
could be no
law.
Some
jurists,
on
INTERPRETATION
105
Whether
.t^Jii),
This
books,
or, in
matter is
but I do
not
think
it
necessary
to
the
enter
upon a consideration of the metaphysical and scholastic arguments adduced in support of the different
views. I shall satisfy myself with stating the more important doctrines on the point, in so far as they bear
upon the question relating to the respective function
of
badness of
attributes
bear
to
the
legality
or
illegality
of
acts.
MUHAMMADAN JURISPEUDENCE
106
vations.
is
of an
badness
of
acts in the
legal
sense
in
is
most cases
than substantial.
An
Acts good or
bad per
or
with reference
se,
to something
elge
ac *
ma y
be
god
or bad per
se,
or
it
may
be
it
or extrinsic to
it.
When
is
it
part
of the act, it
may
term
Bahru'l-'Uliain'8
seq.
Commentary on
'
Musallumu'th-Thabiit
',
p. 13, et
INTBEPEBTATION
extraneous,
it
107
is
consists
in
fighting
the
hostile
expression
.1
and some
rjj^aJ),
may
be omitted
such
as
of
Omission
Jl).
when
except
there
man
sufficient
is
excuse for
it.
There-
fore,
refrains
and
devotion.
for
itive
j^J)?
facie
as
bad per
but
it
would be otherwise
tant circumstance.
is
legally void
and
first
effect,
In the
of
no
if
l'Tau4fh' (Calcutta
3
Ibid., p. 190.
it
is
edition), p. 189.
MUHAMMADAN JURISPRUDENCE
108
When
command,
same way
else,
When
Void, vitiated
as a
appears to be otherwise.
is found to be prohibited as
it
an act
it is
se,
legally void
to
( JL'j) according
being
all.
If
is
tant
the
circumstance,
in
correct (sahih
^j.^yc)
tion
is
When
the act
its
is
regarded
legally
is
c-,
circumstance
Examples
).
sale
is
it
call to prayers.
in law, but
to a
and
wine,
sale
abominable act
is not,
during
is
valid
therefore, called
means
which
mubah,
if
vitiated or
involves sin,
and
abominable (makruh
in this
as
concomitant
Xj
act
sense that
It
indifferent.
is
spiritually
a vitiated contract of sale is said
1
And
contrary to the injunctions of religion.
further, because a vitiated transaction entails sin in
to be
stated.
presumed not
adventitious circumstance
juristic
act
is
if
it
fulfils
reference
Some
jurists
have
'
Kaddu'l-MuhtAr
',
INTEKPBETATION
109
Whatever the
the
distinction between
transaction
and
the
the
nesses,
We
is
now
of
authentic Authentic
interpretation of
question
interpretation
of
generally.
used in a text,
it
relates
either
to
its
meaning, as
of the
to
intention
what apper-
it,
by the text
been alteration of
the
law
is
is
law,
it
means
MUHAMMADAN JURISPRUDENCE
110
the
have operation
to
is
But other
latter.
that the
the term.
of
is
an
artificial
use
be taken to
tion
When
Explanatory
texts
text,
or
it
it
may
not.
When
meaning
by fixing
is
it
of a
(taqrlr .jJiS)
its
text,
ascertainable, is to
make
beyond the
of
application
involves no
interpretation
meaning
its
when
object,
it
still
clearer
possibility of its
whether
versa.
isolated,
An
continuous, or well
interpretive
text
of
this
known and
vice
character may,
Amending and
repealing texts
tradition
of
isolated
origin.
An
inter-
'
Talwfh
'
p. 456.
INTEEPBETATION
the
The
text.
first
point from
the
on
differ
however,
Shafi'is,
Hanafis.
111
According to the
this
latter
of
is
shows that
subsequent text
original
text
is
limited,
the
the
of
application
text
repealing in
effect.
its
The
modification and
lated
limitation
Thus we
tradition.
that
find
such
made by an
be
to
The
iso-
relying on such
of
One
text
is
said
is
to
sufficient in law.
of
subsidiary
When
circumstance.
one
of
there
are
which
rests
two
on
of
a sub-
When
later in
God intended
date,
as
it
cannot be conceived
If
MUHAMMADAN JUEISPEUDENCE
112
the
traditions
analogical
panions.
that what
The
may
for
men
thereafter.
An important
found in the repeal of one
revealed religion generally by its successor.
Both the repealed and the repealing texts must be
revealed.
Eepeal, according to the Hanafis and most
of the Shan't and Maliki jurists may be (1) of one
Qur'anic text by another, (2) of one traditionary text
not be
may
good for
Both the
repealing
and repealed
laws must be
revealed
another,
by
text,
that
is
Examples
can
be
of repealed
several
to
laws
cite
case
Suratu'l-Baqara
two by way
or
it
is laid
down
of
illustration.
In
make
provision by
but
so
far
as
for
it
down
that
widows are
entitled
See
See
'
Tafsfr-i-Kashshaf
'
Tafsfr-i-Ahmadf
Tafsfr-i-Kashshaf
',
p. 163.
'
maintenance for a
by a verse of another
',
p. 124.
',
to
'
;
Tafs{r-i-JaWlain
',
p. 35
INTERPEETATION
Sura, namely an-Nisa'.
It
may
verse in Suratu'l-Baqara
113
authority of the
widow
that a
is
entitled to
'
tombs
the
of
'
condemned the
deceased
persons,
practice of visiting
but
afterwards per-
it
Muhammad, who,
it
is
believed,
was
by a subsequent Ijma'.
seded
not
in
the
former,
the
rule
subsequently
'
are
'
and traditionary
1
2
15
it
25 Cal., p. 9.
The sacred House in Mecca.
cannot be said
MUHAMMADAN JURISPRUDENCE
114
with
is
reference
to
either of
it
its
words (nazrn
Jij).
which
down
in other words,
S*Ljj!)
enunciates
it
times both.
verse has
(naskhu'1-hukm
If
been
.^--^.l
=.~J),
and some
regarded as part of the Qur'an, so that their recitation during prayers would bring spiritual benefit.
When both the words and the law of a text are
repealed, that text no longer forms part of the Qur'an.
Authentic
atin
ii...^ ,.,Uj)
*
*^
-JJJ
nGCGSS9jry
implication
been
'.
have
said.
.
of
what
For instance,
is
it
left
is
laid
down
in the
Qur'an
mother
will
being of a
deceased person leaving only his parents, and no other
preferential heirs, the necessary implication is that
the remaining two-thirds will go to the father.
Or
the necessary implication
may
arise
when
men
practising certain things, but reveals no law prohibiting such acts, the inference to be drawn is that he does
CONSENSUS OF OPINION
115
discuss
jurists also
and classification of
other
the discharge of
words,
the performance of
obligations,
command
in
j^UJ'j ^11^1) or,
duties and obligations,
(<o
PART
SECTION
AND CUSTOMS
IJMA'
IJMA'
II
in
The
espe-
Whatever
Muslims hold to be good is good before God.' 2
The other texts relied on in this connexion are the
'
the
following
My followers
:
'
never
will
what
upon
agree
is
wrong.'
'
It is incumbent upon
you to follow the most
numerous body.' *
The (protecting) hand of God is over the entire
body and no account will be taken of those who
'
separate themselves.'
'
Whoever
will
'
go to
hell.'
He who
opposes the
of ignorance.'
l
'
Tavujfh
iii,
p.
',
p.
498
Mukhtasar
'
;
tradition,
'
see
Taudfh
U4di's Commentary,
Ibid, p. 258.
vol.
',
ii,
p.
29
'
;
Jam'u'l-Jawami'
',
288.
iii,
p. 258.
3
vol.
main body)
span
vol.
vol.
',
ii,
p.
298;
see
Kashfu'l-Israr
vol.
',
iii,
p.
258.
ii,
p.
34
'
;
Taqrir
p. 85.
tradition, see
'
Taudih
'
iii,
p. 34.
tradition,
'
on the margin
of Talwih, p. 515.
',
MUHAMMADAN JURISPKUDENCE
11(5
God
'
after they
proofs.'
3
To-day we have completed your religion.'
*
What lies outside the truth is an error.'
Obey God and obey the Prophet and those amongst
5
you who have authority.'
'
'
'
'
If
who do.' 6
You are
'
men
order
the best of
do what
to
and
nieii,
is
is
it
right and
your duty to
to
them
forbid
'
the Companions. 10
and the Malikfs recognize the authority
to that effect
Ijma'
is
an
essential
principle of
uris
among
The
Shan'is
of Ijma' not
religion but also in
'Taudfh',
A Qur'anic
300.
p.
299.
Ibid., p. 299.
*
Ibid., p. 294.
A Qur'anic
Ibid,
see
Ibid,
see'
Ibid., p. 256.
Ibid, see 'Taudfh'
Bazdawf
'0
p.
30
ll
p. 29.
'
;
'
verse, see
Suratu'n-Nisa'.
p. 514.
'
',
p.
253
Jam'u'l-Jawami'
Jam'u'l-Jawami'
',
on
'
;
',
the margin of
Taudih ', p. 283
vol.
vol.
iii,
iii,
p.
'
Talwih
'
',
p. 508.
Mukhtasar
',
vol.
ii,
308.
pp. 288,
305-7
'
;
Mukhtasar
',
vol.
ii,
CONSENSUS OF OPINION
to
upon
tutional
solve the
first
that
problem
and most
117
important consti-
arose on
invisible
the Kharijis
1
also dispute the validity of the doctrine.
It is not necessary to set out all the arguments
on Argument
support
Ijma', in support of
IJ ma
but one principal argument
be
thus
stated.
may
In a Qur'anic text already cited, it is laid down
that God has completed the Islamic religion, and it is
laid
also
down
Muhammad
that
was
it
rely in
of theirs
will
last
the last of
of
for
and
ever,
the Prophets.
that
In
the
and we can no
dead,
longer
have his
guidance,
it
valid
authority and
truth
is
error.
make such
deductions,
question must be of
must also be infallible, since
opinion on any
it
Islam and
one according to
all
besides
is
'
'
'
Mukhtasar
'Tau4flj',
Bazdawi
',
vol.
',
vol.
ii,
Ijma'
p. 29.
n the margin
iii,
An
pp. 226-7.
of
'
Talwih
',
p.
510;
'
Kashfu'l-Israr
',
MUHAMMADAN JUBISPBUDENCE
118
if it be one in strict
the
with
requirements of law and proved
conformity
infallible
testimony. Then there are other Ijma's
by
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
is
Who may
participate
in Ijma'
of other jurists.
According to accepted Sunni
tahids or jurists alone have a
non-Muslims
The
voice in Ijma'.
are excluded from such juristic deliberathe power
tions because
is
in
The power is
law
collective
decision
to
is
settle
questions,
the
deter-
of
1
making analogical deductions.
is
fundamental
the
fasting during the Kamadan, and performing pilgrimage, that the law has been established by Ijma' of
masses are
God has
'Talwfh',
Jawami'
3
of
'
',
p.
'
498;
'
'.
The words
Mukhtasar
',
vol.
ii,
'
men
in
author-
'Jam'u'l-
Kashfu'l-Israr
',
vol.
iii,
p. 240.
This
is
Hammam.
Jassas
and
CONSENSUS OF OPINION
119
'
'
if
of law in
both
for
'
Taqn'r
Tahvlh
'
vol.
',
iii,
p. 82
Mukhtasar
'
;
p. 639.
Kashfu'l-Israr
',
vol.
iii,
p. 249.
',
vol.
ii,
p.
33.
to
be
MUHAMMADAN JURISPRUDENCE
120
observed here
is
mined by
public opinion
authority in the State.
According to Sadru'sh-Shari'at
be dct
to
left
is
and not
i-
definite
by any
How far
is
heresy a
Hanaff
a
and
other
many
is
Ijma'
jurists,
whose
heretical doctrines
would only
exclude
amount to infidelity.
The orthodox sects
1
Orthodox
sects
Jama'at
(dcUx^
men who
a? distinguished from
or
Sahibu'l-bid'at (c_^-J^
Ummatu'd-Da'wat (jj.
JUt),
that is, men of innovation. Those who -exclude
iwUxJl).
i.e.
follow,
c All
<LjJk!!),
texts
to
eternal
those
The
punishment.
reasons
for
excluding
heretics
substantially
Muslims.
As regards those
men
heretics,
who attempt
to
own
convert
to their
them
'
followers
Taqrfr
1
vol.
iii,
p.
96
'
;
Mukhtasar
',
vol.
ii,
p.
33
'
;
Jam'u'l-
CONSENSUS OP OPINION
nal
all
virtues,
also clear
that
of
which
they,
121
moderation, and it is
having been spoken of as witlie in
nesses of
to
on the express
Muhammadans
is
be
men
an indisalso have it
is
that
the
Examples of
and also held the view that the commission of Afferent forms
any sin however trivial turned a Muslim into a nonbeliever, and those Shi'ahs who disputed the right
of 'Umar and 'Uthman to the
Calipha-te 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 'All
'AH,
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.
fied
disquali-
doctrines
account. 4
>
'
'
16
MUHAMMADAN JURISPRUDENCE
122
Transgression
whether a
disqualifi-
cation
is
that t"ie opinion of a man who
does not act up to his doctrines is liable to distrust.
Further they rely in this connexion on some of the
hold
this
view
texts
as
a
already cited.
Imam Sarakhsi
man openly and
is
not be excluded.
Opinion of the
f
jurists,
Ijma'
confined to the
is
Companions.
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
where the Prophet took
city, as it was the place
refuge and carried out the greater part of his mission.
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. 5
Two
upon in support
Madfna throws out its dross as
view.
of
metal
'
Kashfu'l-Israr
'
Jam'u'l-Jawami'
'
Taqrir
3
'
and
',
'
'
',
Taqrfr
vol.
',
Bazdawl
vol.
as
pp. 237-8.
',
p.
iv,
the dross
fire
Madfna
250
'
;
Mukhtasar
',
',
vol.
ii,
35
p.
'
;
Jam'u'l-Jawami'
',
vol. ii,;p.
vol.
iii.
'Mukhtasar',
5
'
',
to
38
Mukhtasar
',
Islam
stick
will
of the Maliki
Ibid., vol.
ii,
vol.
ii,
p. 35.
pp. 29, 35
'
;
Taqrfr
',
vol.
iii,
p.
100.
iit,
p.
291
CONSENSUS OF OPINION
serpent to
hole
its
'.
These traditions
other
123
are,
however,
indica-
as
jurists
being merely
interpreted by
It
tive of the sacred character of the city.
may
be
Those
who would
jurists
restrict
Ijma'
to
'
'
be
should
meaning
upon them.
put
Imam
It
also
is
Hanbal,
confining Ijma' to
the Companions, was influenced by considerations of
practical difficulties in the way of its being realized
that
stated
in
1
any other age.
their age.
The
down
is
of the
laid
house
'
(of
'
them,
you
not
will
go
wrong,
the
Book and
my
The Sunnls
doctrine of
l
'
absolute authority
Kashfu'l-Isrir
',
vol.
iii,
p. 240,
like
Ijma'.
MUHAMMADAN JUKISPBUDENCE
124
Further it
mentioned
Opinion of
the first
four
Caliphs
is
Abu Khazim
who
held
some
Hanafi
such
doctors
as
that
in
Conditions
what
see
relat-
relating
ing to constitution of Ijma'. According to the acto
doctrine of the four Sunni Schools, there must
constitution cepted
be unanimity of opinion among all the jurists of the
of IJ a'
age, in which the decision in question is arrived at,
in
order
may have
the force of
the majority of
But,
Ijma'
jurists who agree in a certain conclusion do not admit
that those who dissent from them possess the qualifiin
if
view.
this
The
if
that,
have
Hanaffs, the
Shafi'is, and
the number of dissentients
How far is
unanimity
of opinion
a necessary
condition
a presumption of infallibility
only in favour of
The jurists, who hold that the
body.
opinion of the majority is sufficient for the purposes
of absolute Ijma', interpret the texts in question as
raise
the
entire
'
'
Taqrir
',
'Mukhtasar',
'
vol.
Kashfu'l-Israr
Jiim'u'l-Jawimi'
',
ii,
',
vol.
vol.
iii,
p. 86.
iii,
p.
291
p.
262;
'Mukhtasar',
'
;
Taqrir
',
vol.
iii,
vol.
p. 93.
ii,
p.
35
CONSENSUS OF OPINION
meaning most and not
all.
125
if
it
not denied
but
It
impossible.
it
is
all
the
Muham-
said
is,
its
by
most When
an Ijma' is completed as soon as the jurists Ijma'
c<
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.
According to another
report of Hanbal's opinion he was in favour of such
Shafi'is
suspension of Ijma' only in matters of analogical deduction, but not when it was founded on texts of
the Qur'an or Hadith. 3
The
'
Taqrfr
vol.
',
Ibid., vol.
3
Ibid.,
Jawami'
',
vol.
vol.
iii,
iii,
iii,
iii,
is
of the
a necessary condition.
p. 83.
p. 83.
p.
86;
p. 294.
'
Mukhtasar
',
vol.
ii,
p.
38;
'Jam'u'l-
is
MUHAMMADAN JUEISPBUDENCE
126
Imamu'l-Hararaain,
probability.
There are again some lawyers who are of opinion
that a rule of law cannot be said to be validly deter-
were
made
immeunanimous declaration is
is
it
is,
no Ijma'
so,
argument
diately
It
is
once
this,
an
Mujtahids who
changing their opinion is not removed, and consequently the matter remains open to
doubt. In answer to this contention it is pointed out
that the language of the texts, which are authority
for this source of laws, does not warrant such a condition, and as sufficient time is allowed for deliberation
possibility of their
the possibility of the jurists arriving at a hasty concluTwo precedents are cited in support
sion is negatived.
of
of his learning, or of
the
faith
earlier
than the others,
his having accepted
and to this no one among the other Companions
to
offered
in
the
1
p.
Caliphate
Jam'u'l-Jawimi'
'
opposition.
he gave
',
vol.
iii,
to
p.
243.
a
'
Kashfu'l-IsrAr
',
vol.
iii,
p. 243.
men
295;
'
of
learning,
Kashfu'l-Israr
',
and
vol.
iii,
CONSENSUS OP OPINION
127
to those
to the others
is
of
'Umar during
also cited.
an
ummi
walad
female slave
(a
girl
first
case,
it
is
alleged that
'Umar had
is
oncurren y
Ijma',
tained a different view, or a jurist a party to the Ijma' juris
happened afterwards to change his view.' For instance,
agreement
different view.
^.
'
iii,
'
Tavujfh
in the
vol.iii,
margin
p.
of
243.
'
Talwih
p. 313.
'
Talwfh
'
Kashfu'l-Israr
',
p.
515.
',
vol.
iii,
p. 2G2.
',
p.
515
Jam'u'l-Jawami'
',
MUHAMMADAN JURISPRUDENCE
128
Companions
of the
learned
down by agreement
laid
the
lifetime,
Prophet's
promulgation of laws by
during
medium
the
is
Prophet
It should
pealed afterwards.
could be no law
of
as
of
the
he was
God. 1 In
The accepted
flicting views.
School
is
the
that
doctrine of the
existence
Hanafi
such
of
disagreement
the
formation
does
not
debar
the
Companions
among
This is in accordance with the
of a valid Ijma'.
opinion of Imam Muhammad, while Abu Hanifa is
9
The Malikfs agree
reported to have held otherwise.
with Imam Muhammad on this point, but say that
3
such cases have been of rare occurrence.
Sarakhsi,
however, observes that all the Hanafi Imams agree
in holding that absence of difference of opinion among
the Companions on a particular question is not a
condition precedent for the validity of Ijma' on that
On the other hand, it is stated in Mahsul'
question.
'
that
is
an
essential
generally, as
4
according to the Shafi'is.
is
it
is
it
urged that,
if
In supbe
Ijma'
Such a
infidelity.
the Prophet
every
is
on a Companion of
The Hanaffs answer that
reflection
not allowed.
is
Mujtahid
liable
to err,
so
is
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.
l
'
'
'
Taqrir
',
Talwfli
',
vol.
p.
Mukhtasar
1
'Taqrir
iii,
p. 71.
507.
',
vol.
vol.
iii,
ii,
p. 47.
pp. 88-9.
CONSENSUS OF OPINION
129
Ijma' of the Companions, but others hold that there a third view is
is no
The P reclu ded
ground for making such a distinction.
Malikis, the Shafi'is and some Hanafi doctors limit the
that
opinion
the
is
it
periodsi
child,
is
inadmissible as being opposed to
Another
is furnished by the case of
example
Ijma'.'
a deceased person leaving behind him his grandfather
and brothers.
According to some jurists the grandfather would take the entire inheritance to the exclusion
before
of
delivery
the
brothers
while
should be
brothers.
not to take at
all
third view
Israr
'
'
Tavujflj
',
vol.
iii,
',
Jam'u'l-Jawamf'
1
on margin of
pp. 234-5
',
vol.
'
;
iii,
'
Talwfh
Talwi'h
',
',
vol.
p. 501
'
;
pp. 296-8.
'Taucjfh', p. 285.
Ibid.,
on the margin
17
of
'
Talwih
',
p.
500.
MUHAMMADAN JURISPRUDENCE
130
A woman
either case
of the
entire
inheri-
or the
wife.
course
third
jurists a marriage
one of
five
may
According to some
reason of any
be annulled by
in the
husband
are sufficient.
the
correctness
of
this
opinion.
Modes of
constitution
Ijma'
wor(j s
may
or by
ijj
in either case
I*
i8
it
practice
may be
of
the
jurists (jiw),
regular (.Uxup)
or
and
irregular
*> e
constituted by words if the
one meeting or on information
sa '<l to
either
at
Mujtahids,
under consideration reaching
of a question being
them, within a reasonable limit of time, severally
declare their opinion in so many words, or if some
one or more among the prominent Mujtahids state
their view and the others, on hearing this at the
'
3 Ibid.,
p.
'
Talwfh
501.
',
p. 501.
of
'
Talwih
',
p. 500.
CONSENSUS OF OPINION
do not indicate
131
dissent
by practice are
Malikis
eqtSfclly authoritative.
and some
generally,
Shafi'i
jurists
consider
if a Caliph
the
of
the
among
Companions
Prophet expounded the
law on a particular question in his sermon without the
audience disputing its validity, Ijma' will be presumed
The arguments
show that
When
'Umar, at
p. 37
vol.
'
'
Tauijih
'
'
'
iii,
'
Kashfu'l-Isrflr
',
'
MUHAMMADAN JUBISPRUDENCE
132
said,
it
to be his duty
to
that a
in the
in
of inheritance,
who
owing
to the
this report
is
denied.
obviated,
if
fined to the
presumption would be
artificial
and weak,
if
applied in
CONSENSUS OP OPINION
133
AM
'All
Abu Huraira
ibn
and
is
Mujtahid
published
have the force of Ijma'.
of
Bazdawi apparently
hid's fatwa. 1
law
is
The number
Ijma need
no t be large
in
One
in
if
thought that,
happened to be only
Juraij,
of Ijma'. 4
They say
ing.
'
'
Kashfu'l-Isrdr', vol.
'
Jam'u'l-Jawami
a concurrent
decision
is
Jam'u'l-Jawdmi'
'
that, since
',
vol.
',
iii,
vol.
p.
iii,
p.
iii,
'
305
'
;
Mukhtasar
229.
p.
Kashfu'l-Israr
Jam'u'l-Jaw&mf'
',
',
',
iii,
vol.
vol.
vol.
ii,
pp. 36-7
p. 593.
iii,
iii,
pp.
263-5
p. 296.
134
MUHAMMADAN JURISPRUDENCE
absolute
in
is
its
supported must
based on analogy
is
man
drunken
likely,
it
is
said,
may
also
Ghazzali
Ijma' resting upon isolated testimony is of no authority, and there are some Hanaffs who take the same
We
view.
most
proved
of
have
it
on the authority
of
Bazdawi that
belief,
'
binding, though
Kashfu'l-Israr, vol.
iii,
it
p.
265;'Talwfh',
p. 517.
CONSENSUS OF OPINION
135
matters,
clear authority
and
universally
observe
to
would be
if
only
it
universally known,
or at least as well
known
it
character,
should
and
'
Mukhtasar
',
vol.
ii,
p.
44
'
;
Jam'u'l-Jawamf
'
',
vol.
iii,
p. 815.
effect of
MUHAMMADAN JURISPRUDENCE
136
for
who
the jurists
in an authoritative form.
But
perhaps due to the political conditions which
have prevailed in the Muhammadan world ever since
the days of the first four Caliphs. It would seem as
of their deliberations
this is
if
habit of thought
practical and
it
in the age in
permanent expression
which
was expounded.
SECTION
II
Customs and
Those customs and usages of the people of Arabia,
Usages
which were not expressly repealed during the life-time
the Prophet, are held to have been sanctioned by
the Lawgiver by His silence.
Customs ('urf, ta'amul,
of
'adat
<tjjlc
(J-cUl
down
'
'
that custom
same rank as Ijma' in the absence of an
1
express text, and in another place in the same book,
the latter.
It is laid
in
Heddya
holds the
custom
is
spiritual authority
like Ijma' of the learned, but a transaction sanctioned
by custom is legally operative, even if it be in viola-
tion of a
from analogy
it
must
Qur'an
There is agreement of
opinion among the Sunnis, that custom overrides
analogical law, and a student of Muhammadan law
cannot help noticing that custom played no small
part in its growth, especially during the time of the
Companions and their successors. The Hanafi writers
on jurisprudence include custom as a source of law,
under the principle of istihsan or juristic preference.
or
Custom properly
so
called
should be distinguished
among
'Hediya',
177-8.
137
be generally prevalent
the country in which
has
arisen.
the
among
the
The author
Muhammadans
question
of
its
Baddu'l-Muhtar
of
is
more
of
validity
defines
often practised
The
confined to
locality,
particular
such as a
village,
vogue in the
Practice on a
valid custom.
that
it
should
custom
But some
of
relating to succession
to the principles of
illegal
being opposed
PART
III
these customs,
such
those
Muhammadan
jurisprudence, be
JURISTIC DEDUCTION
SECTION
ANALOGY
All
in
as
'
Raddu'l-Muhtar
1
2'Fathu'l-Qadfr
3
Raddu'l-Muhtdr
,
',
'
18
vol.
iii,
p. 408.
vol.
iii,
pp. 408-9.
MUHAMMADAN JURISPRUDENCE
138
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
which
Qiyas,
is
generally translated as
analogy.
The
'
root
word Qiyas
As a source
of the
meaning
'
accord
'.*
is
'
measuring
laws
of
it
',
is
',
equality
defined by the Hanafis as an extension of law from
the original text to which the process is applied to a
particular case by means of a common 'illat (<si!c)
'
the Malikfs
original
cause of
'
as
text
the
in
of
respect
law
'
the
or
'illat
effective
'
and
process
of deduction
by
technically called
fj
of
i. e.
),
the
applied
a
constituent
law
is
latter
the
of
its
source of
to the
'illat
legal
is
or effective cause,
the rukn
of
text
to
which
(hukm
effect
laws
is
^=ii-).
subordinate
being
the traditions
Qur'an,
in the language of
the
and
process
is
Analogy as
subsidiary
Muhammadan
lawyers are
deduction
is
to be distinguished
from interpretation
of
a text.
-By means of interpretation properly so-called a text
Scope of
Analogy is applied to cases covered by its language, while the
function "of analogy is to extend the law of the text,
i
'Mukhtasar',
vol.
ii,
p. 204.
'
'
Tau<)(h
',
p. 302.
1.
ANALOGY
139
to
lishing a
new
rule of law.
On
we
By application of
text may be widened
jurists
who
take
some
that
analogy can be used only to extend the actual command contained in a text, and not the cause or condi1
tion of its operation.
Analogy has no application to
which are to be made by the
inferences
of
facts
pure
9
may
by a parit
has the
follow his
own
The
Zdhiris,
such
Hazm
col-
deny Arguments
and reason.
'
Ibid., vol.
'
Aydtu'l-Baiyandt
ii,
They contend
',
vol. iv, p. 6.
p. 80.
Ayitu'l-Baiyanat
',
p. 5.
that any
MUHAMMADAN JDRISPBUDENCE
140
other
view
of
analogy
would
virtually amount to
sole privilege of God.
is
In
support of
following texts
their
the
'
'
revealed book.'
'
"
ful to
of
'
man
an animal ".'
"
whatever
Say,
is
in proper order,
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.'
The arguments based on the above texts are thus
Arguments in
of
met. It is admitted by the Sunni jurists with refersupport
analogy
ence j fa e fi rs t t wo 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,
until those
the
jurists as
a body.
The
down
that
which lays
declared unlawful by
but it
fully admitted
;
is
anticipated.
He
ANALOGY
141
him
'
how
'
are
'
'
'.
'
'
The
exercising my judgement.'
who
God
exclaimed
Praise
be
to
Prophet thereupon
has so disposed the delegate of His Prophet as to be
will
do
my
best by
'
as
source of laws.
himself
The Prophet
'
show
'
Tau4ih
',
p. 307.
Aydtu'l-Baiyandt
',
vol. iv, p. 7.
MUHAMMADAN JURISPRUDENCE
142
The
logical deduction
valid
ana-
Conditions of
(1)
is
to
'
cient 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
analogy
where
inapplicable.
of the text
The law
raison
to
d'etre
a certain proportion of
ments of the nature of hadd for offences like drunkenness and defamation are also not extendible on the
same principle, but Shafi'i holds a different view. For
instance, he would inflict the punishment of hadd
provided for theft on a man who makes away with
the
amount
In a contract
of
hire or lease
nature
nothing which
is
capable
i
of
'Tau<}{h', p. 308
'
is
valuation.
Hence, according to
'Mukhtasar',
Ayatu'l-Baiyanat
',
vol.
vol. iv, p. 5.
ii,
p. 211.
ANALOGY
143
(ajux>)
of
of the usufruct
his
make
it
good.
An
(3)
analogical deduction may be founded accordand the Malikis on the law estab-
text
of
the
Qur'an or Hadith,
a unanimous
repealed,
decision of the learned, and according to some Shafi'is
and the Hanbalis it may also be based on another
been
or by
If the latter,
not.
is
itself
to
then the
The following
be bad.
doctrine
of
first
an
deduction would
illustration.
the
is
it
is
The
sufficient
predicable within
is
riba,
He
food in order to bring it within the prinwithout relying on the analogy of apples. It
article of
ciple
1
>
'
Tauijlh
Ibid.,
Baiyanat
3
'
',
',
p. 309.
p.
309;
'
Mukhtasar
',
vol.
ii,
p.
209;
Mukhtasar
',
vol.
ii,
p.
209
Sadru'flh-Shari'at,
p. 13.
'
Aydtu'l-
MDHAMMADAN JUEISPEUDENCE
144
is
cause,
text.
rule
is
and
they
though
is
The reason
the deduction
law nor covered by the
words of a text is that analogy being a subordinate
source the deduction made by such a process would be
invalid if opposed to a text and would be superfluous
if covered by a text.
It follows, therefore, that the
rule derived by the application of analogy should be in
the nature of a corollary of the proposition established
by a text. In illustrating this condition the Hanafis
take exception to the deduction of Shafi'i on the
question of riba, namely that the principle of riba
for
to
text
equality
of
mean
in
in
'
Ayitu'l-Baiyandt
',
as
being
subject
to
ANALOGY
145
of
ceeding analogically
Shafi'is
hold that
the law
zihar
of
canonical
by
doctrine
non-Muslims. 3
As an example
of
of violation of
by
the
fermenting
root
of
juice
meaning
of
The
grapes.
khamr
some-
is
senses and
(4)
as
to
involve
buys an
a valid
transaction
according to
the
general
rule
an
When
the
Shafi'is
'
A non-Muslim
'
Tauijih
Tau4fh
19
',
',
hold
that
such
contract
p. 310.
p.
310
Muslim
State.
is
MUHAMMADAN JDEISPEDDENCE
146
lawful even
tract,
and hence
Malik
in
down
laying
the
that
If the
new
text law is prohibited within certain degrees of relationship of a man and a woman, who have had
as
must
The
condition.
Let us now
mat or
characteristics
'
'Illat is
.*x>),
Sadru'sh-Sharf'at seems to prefer the first definition, as by 'illat the applicability of the law of a text
to a case not covered by its language becomes known.
$}*)
mined the
jurist
is
in
a position by
text
in
case
in
which
ta'lil
apply
the
(Jalxj), or
the law of
same
cause
is
present.
doctrine
is
that
the Lawgiver
ANALOGY
147
it
said to be proper
is
(^_^AjU. Abu
Its
it
religious
spiritual
the
of
if
disci-
morals
the preservation
is
property, lineage, reputation, religion and understanding. These are regarded in law as matters of
of
life,
absolute necessity
and are the primary secular
(ii...^),
The law has also secondary or
objects of the law.
down
^^^J).
retaliation as
punishment
for
murder
or voluntary
life,
The law
vol.
ii,
>
Tau^ih',
p. 318, et seq.
pp. 240-1.
'
Taucjty
',
p. 318.
'
Ayatu'l-Baiyanat
',
promote men
Zaidini'd-Dabusi welfare
p.
96
'
;
Mukhtasar
',
MUHAMMADAN JURISPRUDENCE
148
The laws
authorizing
sales,
and
leases,
other
con-
where the primary objects of law end and the supplementary or secondary objects commence. The difference must in many cases be a question of degree.
It is pointed out, for instance, that the law authorizing
of
sale
as much
human life
matter of
is
property
necessity
protection from
Similarly, the hiring of a nurse
be a matter of absolute necessity for the preser-
may
vation of an infant's
life.
as
its
Hence,
is
it
a well-known
maxim
'
of
admissible.
what
and proper.
down, as a matter of general proConflict
between
whether
spiritual consideration should always
position,
spiritual and h ave precedence over non-spiritual consideration or the
...
secular
,
In many cases, no doubt spiritual considerareverse.
of
is
fit
It is difficult to lay
purposes
For
tions prevail.
of Bamadan
be
may
standpoint,
to abate his animal
as beneficial to
injurious
but
medical
him.
to
inasmuch
as
month
man from
fasting
the
tends
many
in
cases
'
Ayatu'l-Baiyan&t
Mukhtasar
',
vol.
',
p. 97.
ii,
p. 289, et seq.
and
'
Al-Majallih
',
p. 13.
ANALOGY
In
there
fact,
ships always
a general
is
call for
Generally speaking,
maxim
relief
it is
149
to the effect,
'
hard-
'.
make deductions merely from the broad policy of the based merely
law.
The effective cause must have a particular refer- on tne
SfGHGrfll
ence to the subject to which the text relates. Otherp olicy of the
wise, it is pointed out, one is likely to be involved law not
in inconsistencies.
For instance, the preservation of allowed
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, there-
on
preservation of religion.
man
law
upon
fastens
its
of the
weapon used
to the
as indi-
most correct
According
an abstract reason if sufficiently definite can
form a good basis of analogical deduction.* As we
shall see later on, the law in one matter is sometimes held to be the effective cause of law in a similar
matter. So also in many cases of juristic equity
the effective cause of a rule may be hidden and imperopinion
ceptible.
rule that
Mukhtasar
Ibid., vol.
'
Tau4ih
',
',
ii,
p.
319
'
;
Mukhtasar
',
vol.
ii,
p. 239.
command
MUHAMMADAN JURISPRUDENCE
150
It IB
ally
good in
is
whether a text
is based on an
extendable
cause or not
all
Some
cases.
are of
jurists
to
is
express authority
that the law enunciated
not based on
a cause or reason which is capable of extended application, for the law is established by the words of a
text and not by its cause or reason.
Others think that
in
a text
is
down by
laid
text
is
to
ascertained from
be
its
to extend
it
cannot,
is
circumstances
The
of
Shafi'is hold
extension
mu'allal
by
(,u]lic<i),
that
is,
it
is
for
but
Shafi'is,
the effect
1
the former
that,
'
before
would add
condition to
Tatujfh', p. 319.
Mukhtasar
',
vol.
ii,
pp. 213-4
'
;
Tau<Mb
',
p. 319.
ANALOGY
151
is
make
in fact, if the
ratiocination extremely difficult
out
its
be
carried
to
extent, we
logical
principle
;
due to
e ec 1V
_
cai is
of a particular
se ntence of law
j
The
of
effective
law.
cause of a law
may
tradition
and
of
gold
fitness
of these
Such a quality
commodities
an accidental nature,
wheat and barley,
which among other things are mentioned in the text,
though generally sold by measurement of capacity,
are sometimes sold by the measure of
weight. In this
or capacity.
instance,
for
is
of
like
the
of
an analogical deduction
forbidding sale of
MUHAMMADAN JUBISPEUDENCE
152
sensus
of
it
opinion.
called
be properly
of
which
is
that
so
is
Abu Hanifa
effective
be
cases.
very essence
applicable to fresh
cause,
should
it
the
Shafi'is,
on
the other
is in
hand, point out that since such a
certain cases designated as the effective cause by a
text or consensus of opinion, there is no reason why
It may
it should not be so described in other cases.
be true that it does not serve to extend the law, but
limited fact
it
to
may have
one's
its
judgement.
result
of
this
difference of
would be that
opinion, according to Sadru'sh-Shari'at
a jurist, being precluded from accepting a cause of a
limited nature, would among the Hanafis be at liberty
to make deductions from another cause of a more
it seems
general application. However that may be,
if
a cause
Schools
the
all
that,
to be agreed upon by
be extext
cannot
of
the
law
the
be not extendible,
The
effective cause is
'
',
'
'
'
',
'
'
'
',
'
Mukhtasar
Ibid., p. 213.
',
vol.
ii,
pp. 283-4.
ANALOGY
'
153
'
to
';
death by stoning.
is effective cause
qf the sentence of
In these two cases it should be noted the effective
cause can hardly be said to be extendible.
When an effective cause is merely suggested, the
indication may be furnished by the nature of the construction of a sentence or by the fact of the exposition of
the law being made in answer to an inquiry or by the fact
of the law in two cases being distinguished by reason
In the Qur'an after
of some particular fact or event.
'
the
tion of
passage
in
or,
man from
its
being laid
'
text
'.
each case
An
For
by consensus of opinion.
so determined. 1
When
text
out what
law
is
of
the effective
or
itself
is
the text
is
based.
said to be proper
But
it
is
if it
a condition
that
<
20
Taudfh
',
p. 326.
MUHAMMADAN JURISPRUDENCE
154
said
and
when
be appropriate
reasons of the
to
closer the
text,
the
deduction
stronger.
Effective causes
The ideas forming the general policy of the sacred
of the same
ws
being tne ultimate generalizations are regarded
genus or
as
*^
e
highest genus of effective cause or reason. These
species in their
relation to
when analysed are found to comprise causes of a less
laws of the
general character and when the latter again are analysed
*k e y are f un d *
i 110 11 ^ 6
causes still more limited,
,
'
and so
For
instance, helplessness of a child without understanding and of a lunatic are varieties or species of
helplessness due to defective understanding. The latter
in its turn covered by helplessness arising
from
want of strength, mental or physical.
generally
Of a still wider character is helplessness induced
without the volition of a person, as when he is con-
again
is
fined against
by a man's
his
will,
own
act
Effective cause
ascertained
by elimination
One mode
ascertaining an
of
elimination (sibr
l
^),
that
';Mukhtasar
Ibid., vol.
ii,
',
effective cause is
is,
by rejecting such
vol.
ii,
p. 243.
p. 242.
by
facts
ANALOGY
155
and discretion
of the jurist.
9
a deduction
all the Sunni Schools
According
based on a proper fact or reason, which is also considered appropriate for purposes of analogical deduction,
In the opinion of Shafi'is and Malikis the
is valid.
Mujtahid is bound to make the necessary deduction if
such a cause is available. On the other hand, according to the Hanafis, he is not so bound unless such
to
opinion.
For
when
instance,
the
question arose
whether the brother or the grandfather is the preferential heir of a deceased person, 'AH based his conclusion in favour of the brother on a simile indicative
of relationship as the guiding principle.
likens the grandfather to the trunk of a tree putting
forth a branch (meaning the father of the deceased)
of closeness
He
Sadru'sh-Shari'at
jurists,
'
Mukhtasar
Ibid., vol.
ii,
',
vol.
ii,
p. 242.
p. 232.
the effective
Binding nature
f a deduction
~
on
se
,.
w hich is both
proper and
appropriate
MUHAMMADAN JUBISPRUDENCE
156
his
Imam
Ghazzalf
a deduction from
if
is
be called for
it
Muhammadans
as an
Muhammadans and
the
in front of their
the
non-Muslims the
lines a
of
latter
Muhammadan
body
place
prisoners as a shield, he holds that it would be lawful
to shoot at them, if the situation could not be saved
otherwise. The reason he gives is that, if by abstaining from attack the result would be a triumph of the
non-Muslims, the Muhammadan body politic would
CcliSGS
binding.
be the basis of deduction in all the four forms,
^
has the strongest claim to acceptance, next if in three
and then if in two of the forms. It will be seen that
there can be only one group of cases in which all the
may*
in
its
the property of a minor girl whether married or unmarried. Again helplessness of which minority is a
of guardian
variety, is the effective cause of appointment
of the property not only of a minor, but also of a
lunatic.
An
ANALOGY
157
The
following tests
are,
perhaps,
more
useful in
legal authority is to
be preferred (2) if one effective cause is more acted
upon in law than another, a deduction founded on the
former is to be preferred
(3) if one effective cause is
found in a larger number of texts than another, the
;
former
latter
that,
is
(4)
when
it
is
which
it
gave
another
conflict,
and
if
a jurist
them commends
for this
rests
on
to
be
jurist is
in entitled to
'
0^? twcf
conflicting
is,
I'TatuJlh', p. 371.
MUHAMMADAN JUEISPEUDENCE
158
Whether the
Many
Hanaffs, some Shafi'fs, the Malikis and Hantho operation of a particular effective
applicability ba ]f s
of an effective
hol a that
cause may
be limited
may
cause
..
,.
be limited, that
is
to say, a certain
cause,
some
generally effective, may
but
eminent
Fakhru'l-Islain
like
Hanaff
cases,
jurists,
and Sadru'sh-Shari'at, say that nothing is a good
not be
though
effective
so in
cause,
command
found the
is
is
Muhammadan
the
facts
of
who
hold
Indeed, those
system.
have
to make it
theory
that in some cases the legal
the stricter
by
good by an explanation
effect
some
'Udad
does not
follow
The
obstacle.
(tUjc),
substantial.
upon
truth
is,
cause
its
by reason of
by Qadf
more verbal than
as pointed out
liability
being
him
liable.
The
Shafi'is
would
hand,
who do
'
'
Tauijfh
',
p. 345.
Mukhtasar
',
vol.
ii,
p. 219.
ANALOGY
effective
from
cause
159
being operative,
may
be
found
interesting.
(1)
cause
effective
when
as
string
of
being
constituted
at
all,
stance, a
ative, as he cannot
of
sale.
(2)
In some cases the effective cause is not completed by reason of some obstacle, as if, to
continue the metaphor, the arrow being shot,
it
should fail to hit the mark. If a person
who is not the owner of a thing sells it, the
contract which
is
(4)
but the
wound
of a surgeon.
is
skill
it
is
having
as
not
if
the
heal
become binding,
wound caused by
but
wounded person
1
'
become
chronic,
gets used to
Tau4fh
',
pp. 345-6.
just
so
that
the
This happens,
MUHAMMADAN JURISPRUDENCE
160
an
of
effective
in considering
lies
fallacy
proposal and
theory of
it
is
Examples
of
analogical
deduction
heading of
certain rules,
but
those rules
when
closely examined do not involve any important principles of general application, but appear to be more in
the nature of arguments in support of the view held
by one school or the other in certain concrete cases
and in refutation of the position of the adversary in
such cases.
Pronouncement
of Amen in a
loud or low
voice
1.
Hanafis.
Amen,
should
be
Amen
should be
Shafi'is.
be that
it
is
made
a prayer
pronounced
utterance of
fore
When
an act
low
in a
is
of devotion,
and there-
voice.
If the
is
calls to
True, these
cases
resemble
ANALOGY
161
'
during prayer.
Shafi'is.
same footing
as
on the Proof of
be marriage
cannot
property and, therefore,
proved by the testimony of two women and one man.
Hanafis. The deduction is bad, as it is based
2.
marriage
does
not
stand
a negation.
The reason, why mixed evidence
allowed by the Hanafis in marriage, is that its validity cannot be affected by the existence of a doubt
on
is
in
the proof of
valid
by the
Shafi'is
is,
fact
if it
is
that
be con-
relied
upon
known
least
and claims
the
child,
he
will
be entitled to
it,
as he
woman's bed.
The second husband is entitled to the child,
Shafi'fs.
as he is the actual master of the woman's bed, just as
is
Hanafis.
The law
The reasoning
Sh&fi'fs.
'
'Taudih',
i. c. a girl
21
Kashfu'l-Isrir
is
the
',
pp. 1194-5.
p. 351.
sexual connexion.
MUHAMMADAN JUEISPEUDENCE
162
of
in
is
and a thayyiba. 1
A case relating
Shafi'f s.
5.
A non-Muslim
to punishment fo e sentence of
flogging for
for whoredom
maiden
whoredom
girl is liable to
and, therefore,
is
woman
for
similar
offence
is
5
higher than a sentence of flogging.
A wrong-doer who has forcibly taken
6.
Shafi'fs.
Trespasser's
liability for
possession of the property of another is liable to restore
mesne profits it to him and is further liable to account for the mesne
commits breach of a
profits, just as a man who
contract
is
property,
liable
The wrong-doer
Hanafis.
but
is
not
liable
for
mesne
the
the
profits
physical
object.
Hence
there
is
no basis
for
assessment
of
'Taudih', p. 352.
Ibid., p. 352.
JUEISTIC EQUITY
the
of
way
of
163
such cases by
exception and analogy cannot be applied to
future
profits
allowed
is
in
exceptions.
The
sists
Shafi'is reply
The value
in the rights connected with
:
of
it
con-
property
and not
in the
husband
case there has been no con-
If either a
Shafi'is.
non-Muslim wife
or
The
reason- husband on
cannot be, as
in that case
of
forfeiture
of
cause of separation.
SECTION II ISTIHSAN OR JURISTIC EQUITY
It
rule of
what
has
been
expressly laid
in conflict J uristic
down by some
to the latter.
It
may
happen that the law analogically deduced fails to commend itself to the jurist, owing to its narrowness and
in adaptability to the habits and usages of the people
and being likely to cause hardships and inconveniences.
In that event also according to the Hanafis, a jurist
l
'
Taucjfh
',
pp. 374-5.
e(
MUHAMMADAN JUEISPEUDENCE
164
which analogy
which in his
of men and
the
welfare
advance
would
better
opinion
The doctrine by which a
the interests of justice.
at liberty to refuse to adopt the law to
points, and to accept instead a rule
is
jurist is
either
called Istihsan
technically
a thing to
(^Lu^-l literally, preferring or considering
be good) which I have translated juristic preference
or equity.
not
of
approve
The term
alone,
and so
is
it,
Istihsan
much
is
of the doctrine
itself
which author-
on
aspect
special
of
it
the
that
principle
yers speak
particularly identified.
of this doctrine as if it
analogical
deduction.
preference
hidden
being
was a
They say
However that may
analogy.
hampered
and wider
by
it
rules
as
is
of
juristic
The Hanafi
is
is
law-
species of
nothing
but
freer
in
been the
analogy
adaptability
which alone
make
it
the
handmaid
of
The
of Istihsan
'
seem
it
to a student of
Muhammadan
law.
JURISTIC EQUITY
Laws
on
based
165
are
equity
juristic
divided
by Different
juristic
e qu jt y as
the
In
jurist.
to
juxtaposition
this
classification
of
^^g-
opposed to
and
other
(a)
to
is
be preferred to
(1)
to (b).
(2)
make
Some jurists
classification of
these
juristic preference
the
at
first
be so on closer
at
the
be
so
first
on further
consideration,
appear at the
(cl)
found to be sound.
They
corresponding classes, which may be numbered respectively as (la), (16), (Ic) and (Id ). When
opposed to each other (la) is to be preferred to juristions
into
class
(al)
and
(Id)
(dl)
(Id),
to
(Ic),
and
is
to
(Ib)
and
(61)
are
to be preferred to (Ic)
(cl),
(Ic)
to
(cl)
and
(Id)
(dl).
'
It
is
'
be frequently
it,
MUHAMMADAN JURISPRUDENCE
166
juristic
The
istisna'.
doctrine
is
chiefly resorted
complex conditions
of a
where
a
strict
adherence to
growing society
meet
the
wants
the people.
would
fail
to
of
analogy
It will also be remembered that it is on the strength
of this principle that the Hanafi doctors abandon a
^ o>
caseg
ar i s ing
out of the
SECTION
PUBLIC GOOD
III
Imam
of
good
public
_Laji*JI.
<tL,.x>J]
J'~^-)
1
held a similar view.
wa'1-istislah
(masalihu'l-mursala
But
does
it
appear that
not
and
like the
to
be
For
instance, some
Maliki jurists have invoked this doctrine to justify
the use of force to a person accused of theft to make
be said
be
to
happy
one.
him
SECTION IV
The word
Istidlal
ISTIDLAL
(JijJU)
in
means
ordinary use
interpretation.
Istidlal is
the
name
ratiocination, not
See
'
'
Istidlal is
Jam'u'l-Jawami'
',
scope of
of three kinds
See
'
juristic
pretation or analogy.
i
Shafi'is
inter:
ISTIDLAL
(1)
The expression
167
the connexion
of
existing be-
that
^jJ*;
specific
ceased,
(3)
j,
continues.
still
The authority
Islam
(i)
when
is
for
propositions,
example,
the
statement
that
if
would
be
ablution
stitutory
specific
also
valid,
is
intention, a
that
is
admittedly
regular
to say, as
not
ablution
a sub-
without
cannot be
valid
also
without
of the
that
(2)
the case of a
is
of
man who
forbidden.
Istishab may be mentioned
has disappeared, and whose
distributed
among
share in
contrary
is
proved
is
it
serves to
new
Therefore in the
MUHAMMADAN JURISPRUDENCE
168
dis-
appearance.
(3) As for the binding character of the laws which
were revealed previous to Islam, I have elsewhere
stated the Hanafi view, and there does not seem to
be auy marked difference on the point between it
and the views of the other Sunnf Schools. 1
It would seem that Istidlal as a method of juristic
deduction includes all forms of ratiocination which
do not
fall
Udud
Qadf
public
SECTION V
juristic exposi- o f
and
development
of the
With
Is further
tion
Istidlal.
^e
Muhamrnadan with the principles of the system. For this purlaw precluded p ose> we must endeavour to understand the
precise
scope of the rules
a
Mujtahid
or
the
relating to
and
jurist,
qualifications
of
endeavour to ascertain
Sunn! Schools in con-
position of the
nexion with the doctrine of taqlid, that
the
true
the duty of
is,
adopting the exposition of law as made by the ancient
The word Mujtahid which is a nomen agentis
jurists.
means a person who can make ijtihad. Ijtihad literally
means striving, exerting and as a term of jurisprudence
Ijtihad or
^ means
all
juristic
exposition
the
Jftw
^^ ^
Q^.^
the
Jawimf
3
'
',
Mukhtasar
',
vol.
iii,
part
191-2
ii,
of
i,
'
section
'
i,
Mukhtasar
p. 281.
',
Tautifli
vol.
ii,
',
p.
250
p. 286.
'
;
Jam'u'l-
169
is
the
mined by Ijma' is applicable. Here it must be observed that though questions, which have been determined
by Ijma', are not open for the exercise of Ijtihad, yet
as none but Mujtahids can take part in collective
deliberations the question relating to the qualifications
of a Mujtahid necessarily affects this source of laws
as well.
It
will
or jurist
is
He must
or
lawyer.
not only be learned in the law but must be able to
make
whose utterances
inspired.
All the
deduction
is
in all matters of
'
'
'
Jam'u'l-Jawami'
',
vol. iv, p.
262
'
;
Mukhtasar
2'Tau4fh'. p. 382.
3
Bazdawi",
22
vol. iv, p.
1135
'Taudi'h
',
p. 382.
',
vol.
ii,
p. 289.
MUHAMMADAN JURISPRUDENCE
170
he
the isolated
to the continuous and
aube
able
to
discriminate
between
and
traditions,
thentic traditions and traditions of weak authority, and
he muse know the history of the narrators of traditions, but in this connexion it would be sufficient for
a jurist in our days to refer to the authority of one
of the Imams of tradition such as Ahmad, Bukhari
and Muslim. It is not necessary that a jurist should
know the science of divinity, or all the rules of law
A woman
in the different branches of the code.
is
a
it
and
so
also
slave.
Nor
be
a
jurist,
may
rules
relating
necessary
It
be
will
are the
fications
that a
jurist
observed
.should be
that
this
man
statement
of
of
piety.
what
necessary, and what are not necessary qualifor a jurist is more detailed than what is
on
may
namely, Mujtahidu'l-Madhhab
(i^a>j,x>JI
j-^Uj-*)
that
Such
a jurist following a particular School of law.
a jurist must be able to apply the principles laid
down by the founder of his School to particular
is,
describes
that
is,
them
those
as Mujtahidunu'l-Futiya'(*'_iduJ!
^jjwylajx.),
who
171
Shafi'is
men whose
may
qualifications as a
Imams
themselves
mostly,
in
not
if
all,
the
developing
work
seem so
am
'
'
that
more
elaborate
gradation
in
classification
juristic
history cannot be
work
the
of
so
far
as
What
gainsaid.
Such
jurists.
it
is
then
is
a fact of
its
legal
significance?
In
this
connexion
the
ascertain
it
is
exact scope
Taqlid.
As
opinion.
following
term
the
of
of
opinion
been
Qur'anic
traditionary
matters which have been
for juristic
means
it
matters
with
by an express
or by Ijma', for in
so dealt with there is no
dealt
or
room
jurisprudence
a
in
jurist
text
opinion
and
all
whether
persons
possess
'
'
'
the
qualifications
Jam'u'l-Jawami'
Taqrfr wa't-Tahbir
',
',
vol.
vol. iv, p.
iii,
p. 340.
of
276
a jurist but
'
;
Mukhtasar
',
is
vol.
learned
ii,
p.
307
MUHAMMADAN JUEISPEUDENCE
172
the
in
law
('Aliui
J-e)
he
particular question
it
on a
though
Questions
connected with
The
men's conscience.
questions which are raised by
Must
Muhammadan
it
the doctrine of
may
be thus speci-
of the present
day adopt
one of the current Schools of legal thought, or is he
entitled to say
my law is the Qur'an and what the
laid
down by his precepts, but in matters
has
Prophet
not expressly dealt with therein, I hold myself free to
make deductions therefrom according to the best of
my lights, independently of what the others have
I adhere to the tenets which
said
or can he say
(2)
are common to all the four Sunni Schools, and that on
any question on which they differ, I am free to adopt
the view of such one of them as may commend itself
or (3) if he is a follower generally
to my judgement
four
of
the
of one
Schools, is he at liberty on a given
the
view of any other Sunni School
question to adopt
(1)
'
'
'
'
and
(4) is it
judgement
which is opposed to that held by the jurists of the
School to which he belongs, or of the School to which
the litigants belong, if such view has the support
of one or more of the other Sunni Schools and is, in
his opinion, more in consonance with the requirements
The first three questions
of justice than the other view.
affect the conscience of individual Muslims as to the
right law by which to govern their conduct, and the
fourth question concerns the practical administration
of justice.
The duty
of
his
'
Jam'u'l-Jawimi'
',
be available to
may
and the
Shafi'is
173
and the
than his own. 1 The proposition in its general aspect would seem to be selfevident, once it is granted that a juristic deduction has
The
in the
doctors.
The answer to that must be decidedly in the lawyers
negative. The Hanbalis go further and hold that
there can be no age in which there should not be a
whether
who
is
is
There are no
authority of a jurist.
think that the age of independent juristic thought has come to an end, 4 and some
seem to have gone so far as to hold that there can
be no further exposition and development of the docfications,
the
doubt some
trines
men who
even
of
School.
particular
come to an
Ijtihad
their disciples, and those
had
If
the
age
of
On
of
the
Companions
of
the Pro-
and they
be suggested for a
1
'
moment
Mukhtasar
"Ibid., vol.
3
4
'
'
ii,
',
vol.
that the
ii,
opinions of the
p. 309.
p. 307.
Jam'u'l-Jawami'
Durrul-Mukhtar
',
',
vol. iv,
vol.
i,
p.
269.
p. 57.
MUUAMMADAN JUKISPBUDENCE
174
womb
of futurity,
of
to acquire
which
is
ceeds
on the
of law.
to
It is
be
found
in
assumption
the books
that
it
is
is
anything in
which
countetraditionary
Qur'anic
the
other
the
on
notion
above
hand,
the
nances
very
for
Qur'anic text, which is the principal authority
those
who
have
ask
then
deductions, namely,
texts
or
the
'
juristic
knowledge,
now
know
all
',
contemplates
Nor can
times.
175
it
that
we
all
what they are, cannot be disand must be followed like absolute and
sented from
certain laws.
As
had occasion
age of
may
also
new
doctrines
radically
different
Schools.
MUHAMMADAN JURISPRUDENCE
176
Muqallids
especially
among
and
if
he
Sunnf
not
Ghairu
Muqallids
is
to
followers
'
'
follow
who
Wahhabfs
Arabia,
or
who
followers
of
'Abdu'l-Wahhab
one
of
and
century
attitude towards the Turkish
odium on the
considerable
A.H.
sources of law.
of tradi-
In this respect they proximate towards the teachImam Hanbal, but they would not presume in
favour of the dicta of any of the four teachers or of
any other jurists, however distinguished, that such
tions.
ings of
must be
dicta
in
would
nor
tradition
as
of
doubtful
they reject
authority because one of the four Imams did not chose
to rely upon it.
They do not deny that the opinions
Imams and
entitled
are
to
one
on
For
to
respect,
which
all
agreed.
a waqf for the benefit principally of the donor's family
Rau4atu'n-Nadia
(Bulaq edition), p. 284, a commentary by
Nawdb Siddfq Husain on Durru'l-Babiya by Shaukdnf of Yemen,
1
'
'
'
who
'
177
and
posterity,
to
as
from
different
claim
behalf.
On
on
Hanafis
by
Amen
in
ears
at
ground
tone
loud
rafu'u'l-yadain
their
the
jJ.),
(^jJ-jJ!
certain
that
pronounce
and practise
they
(.yaJU ...J^)
that is, raise the hands to
stages
of
prayer
which
the
Hanafis condemn.*
by the jurists of one of the other Schools in preference to that which has found favour with the jurists
The author of Jam'u'l-Jawami'
of his own School.
'
'
historical fact.
fication of
'
RavHjatu'n-Nadiya
22 Cal., p. 619.
',
pp. 283-4.
3 17
Gal., p. 498.
'
See 18
Gal., p.
23
448
12
All., p.
494
13 All., p. 419
35 Cal., p. 294.
178
MUHAMMADAN JURISPRUDENCE
to
On the
interpretation should be gradually narrowed.
it
been
other hand,
has
seen that, for the constitution
agreement among the jurists of all the four
required and in fact unity is the essential
principle on which these Schools take their stand as
Ahlu's-Sunnat wa'1-Jama'at, that is, followers of the
traditionary law and the main body of the people.
No doubt the four teachers had each his own followers and these men, as time progressed, devoted
themselves more and more to the task of developing
the particular doctrines of their respective masters
until we arrive at the age of the writers on Usiil, when
the labours of these jurists who devoted themselves
to the separate systernatizatiori of the principles laid
down by the early teachers must have accelerated
the tendency to form into distinct Schools. But even
in their time the question of difference of opinion
among the masters was regarded as a matter for
discussion and controversy, and it was not supposed
that, because a certain view had found vogue among
of Ijma',
Schools
is
Muhammadan,
to
any
It was not until very modern
Sunni School.
times that attempt was made by means of the doctrine
of Taqlfd to confine the Court and the jurists to one of
the four Schools of law as distinguished from the others.
other
This doctrine
to have
the
has been
effect
of
different
ranks in
a particular
IJTIHAD
AND TAQLID
179
let
us
in
its
trace
present shape, especially in connexion with the adIt should be borne in mind
ministration of jdRice.
that the opinion expressed by the Qadi, that is, the
The
is
to
it
would carry weight but not otherhave been Qadis who were noted as
great jurists, such as Qadi Shuraih, Abu Yiisuf, and
Qadi Khan. If the Qadi is not himself a jurist,
he must on all questions of law in which he entertains any doubt consult a jurist if one is available
or refer to the writings of deceased jurists.
In fact
for some time past it has been the practice of the
Muhammadan Governments to appoint law officers
called Muftis to advise the Qadis on questions of
law. This was partly perhaps for reasons of administrative convenience, and partly because the best
lawyers would not accept the office of Qadi, and the
men who were appointed as Qadis did not enjoy a
high reputation for integrity, and it was, therefore,
of
any other
There
jurist
wise.
thought necessary
to
curtail
their
rules
powers.
which are
the
to
guide a
Muhammadan
law.
absolute law,
Judge
in
matters not
covered by a
t ex t or C onsenBUS of opinion
MUIIAMMADAN JUEISPBUDENCE
180
judge or by
which
is
it
that
in
himself,
based
is
may
all
>XyJLaix>
mujtahadun-ffh), no
salves
also
of
it.
case to
him complaining
of the decision.
The Caliph
to
Shafi'i
Qadi
for
decision,
if
there
is
vol. vi, p.
3%; 'Fatwa
434.
Heddya
Fathu'l-Qadfr
',
'Hedaya',
5
'
'
',
'Fathu'l-Qadfr', vol.
vi, p.
396.
'Alamglr
',
vol.
iii,
pp. 431-2,
AND TAQLID
IJTIHAD
181
to
uphold a
an
ummi
perhaps
the
is
correct
in
regard the array of authorities cited in its supsuch as As-Siyaru'-l-Kabir, Jami'u'l Futawa,
port,
Khazauutu'l-Muftiin, Majma'u'n-Nawazil, Al-Zakhira,
Futawa Bashidu'd-din, Shaikhu'l-Islam 'Abdu'1-WahShaikhu'l-Islarn
habu'sh-Shaibani,
and others.
Harnmam,
But
it
'Ata
ibn
who had
the Qadi
Hamza,
been
losing
'
Hedaya
confidence
of
',
the
'
of
Hedaya' had
discretion as
so
much
far
as possible.
Hence Ibn
Hammam
down
Mujtahid
the
sense of an
independent expounder
of law.
pp.
439-41.
to think that
See
'
Taucjih
1
'
',
it
would be void
p. 445.
Fathu'l-Qadir', vol.
vi, p.
397.
MDHAMMADAN JURISPRUDENCE
182
modern
writers.
Hammaru down
to the
'
',
of
opinion
his,
that of his
disciples.
tendency was also apparent in those days
to restrict the freedom of the Qadf in dealing with
questions on which no dictum of these jurists was
Durru'l-Mukhtar
'
promulgated by
the
to
doctrine of
when apparently
an order was
then Sultan of Turkey, enjoining
follow
Taqlid received
'
weak opinions
its
'
that
the
And it
apparently rigid form.
niah Qasim was chiefly instrumental in giving it vogue. 1
Classification of
The jurists are thus classified by these modern lawjurists
yers of the Hanafi School
:
(1)
Mujtahidun
fi'sh-Shari' (c
yJI
J ^J^U^)
jurists
who founded
Schools.
To them
is
That
in-
to
expounding
dependent power
not
rules
or
limiwere
hampered by any
say, they
of
is
Eaddu'l-MukhWr
',
vol.
i,
pp. 55-7.
183
(^^aJ.JI J ^jj^^)
jurists having authority to expound the law according
to a particular School.
They were the disciples of jurisconsults of the first rank
of these Abu Yiisuf, Muh(2)
Mujtahidun
ammad,
and Suyiiti
their
in the Shafi'f
respective masters,
for instance,
that a rule of
law sanctioned by consensus of opinion is of absolutely binding authority or that a deduction of analogy
cannot be opposed to a text of the Qur'an or Hadith.
They did not, however, consider themselves bound
to follow the masters in the application of general
principles or in the arguments in particular cases, and
they often profounded views opposed to those of their
masters.
(3)
Mujtahidun
fi'1-Masa'l (JSL*x>JI
J ^^vU*-*)
jurists,
Halwani
and
Khan
Qadi
to
jurists
they
are
Strictly speaking
but
they
MUHAMMADAN JURISPEUDENCE
184
are
sometimes
also
called
Mujtahidunu'l-Muqayyid
or Mujtahids with
jflkJI ^jJ^Us^)
absolute powers, namely, the jurists of the first rank. 1
These doctors of inferior rank are divided into four
hidunu'l-Mutlaq
grades.
Ashabu't-takhrij
(1)
themselves
or those that
(*f%iS!l s-'Uye')
in
this class.
Ashabu't-tarjih
(2)
were competent
(^a-yil! i_U*>l)
those
or
who
by
jurists of
'
',
'
'
rank.
(3)
Ashabu't-tashih
^.^wail)
v_jU^I)
or
those
who
The
who was
'
'
Kanz
'
and
and
are given a
"
Those
laid
the
that
last
down.
On any
I
'
Durru'l-MukhUr
',
vol.
i,
p. 57.
185
been
'
'
'
of
3
expounded by the juris-consults or Mujtahids of J^ist" dicta
the first three grades are then classified having regard
to the means for their ascertainment.
This became
as
disciples.
known
as
manifest
is,
reports
Muhammad
notorious
These books
testimony.
'
embodied
are
They
'
by
are
in
certain
continuous
'
or
Al-Mabsut
',
'
'
'
and
also
perhaps
'
Jami'u'l-Kabir
',
but
not
the
The other
dicta reported to have been enunciated by these juris-consults are known as masa'ilu'nnawddir, or shortly speaking an-nawadir or rare dicta,
others.
some
of
'
and
some
Haruniyat
',
24
'
'
Dnmi'l-MnkhWr ',
'
such as
and Buqfyat
Al-Muhurar
said to
'
Jurjaniyat
others such as
to
',
Muhammad
to
'
'
Kis&niydt
vol.
',
'
i,
p. 57.
MUHAMMADAN JURISPRUDENCE
186
Waqi'at or cases
(2)
that
is,
and
their
the
of
disciples
of
Muhammad
ibn Sama,
Abu
and
Hafsini'l-Bukhari
Sulai-
among
ibn Salma,
Muhammad
have been collected among others by Abii'lSamarkhand and after him other doctors
Laith
have also collected them in their books known as
by Natifi and
Majma'u'n-Nawayil ',
Al-Waqi'at
jurists
of
'
'
'
'Al- Waqi'at'
None
Sadru'sh-Shahfd.
by
of
'
and
'
Al-Khulasa
attributed to
'
down
these
Khan
by,
or
mixed
'
'
'
'
'
'
'
Al-Mabsut
'
187
'
'
'
'
'
'
',
'
'
'
'.
The
is
'
'
'
opinions
of
ancient jurists.
...
difference
of
frequently disagreed,
how
is
among
who in
mined
or ruling
It is also
stated
on
'
Durru'l-Mukht&r
',
vol.
i,
p 52,
Rules for
guidance
in cases of
difference
ofopillion
MUHAMMADAN JUKISPEUDENCE
188
fatwd
is
of his
But though this may be correct as a general statement, it would be misleading to regard it as a rule
of invariable application. Al-Hawi lays down as the
correct
rule
that
such
in
cases
of
difference
of
in
undoubtedly
Muhammadan
strict
apart from
that eminent
jurisprudence
which attaches
weight
But according
to the
to
the great
authority.*
of Taqlid
modern interpretation
as above
differ
In
have expressed no opinion, the Mufti
to
is
form his
^e
'
fift^andt^e
sixth grade
express their
opinions
which the
'
this
ne
foll
f a *-wa
'
',
On
',
',,
this
'
practice
On
is
reliance
According to
1
Baddu'l-MuhWr ', vol. i,
what tbese seventeen cases are.
'
fatwa
this
Durru'l-Mukhtar
',
vol.
i,
is
'
',
this
p. 53.
p. 52.
'
given
On
is
common
',
this
the
'
:
On
this
We
is
hold by
based the
practice of
the
189
people',
'
This
'
'
is
',
',
'
'
'
'
',
',
'
'
'
'
'
'
'
'
'
'.
'
'
is
Muslims
'
On
this
is
the fatwa
On
this
is
if
The expression on
'
'.
Hence
'
this is the
'
'
'
view of the law is expressed to be in accordance with analogy and the opposite view is in accordance with istihhan or juristic equity, the latter is
certain
to be accepted, because
valid
is of
it
preference
juridical
that
founder
If a rule of
of
the
and his
School
have
disciples
laid
down.
In this connexion one has to be careful as to the Some books of
books that he consults. Writings of obscure authors, doubtful
such as Mulla Miskin's commentary on
Kanz or
'
'
'
Qahastani's commentary on
Niqaya ', and unreliable
books, that is, those in which weak versions of the
law are reported such as Qinyah by Zdhidi
should
be avoided and the propositions laid down in them
'
'
'Raddu'l-Muhtdr',
3 Ibid. vol.
i,
p. 53.
vol.
i,
p.
54.
MUHAMMADAN JDEISPEUDENGE
190
can
only be
accepted
in
their
if
be
to
elementary
be known.
authority
given on the
treatises
statements
such
'
as
An-
Nahar
AInl's commentary on
Kanz
Durru'lMukhtar' and perhaps Ashbah wa'n-Naza'ir as they
But these
generally stand in need of explanation.
remarks must not be understood to apply to the ac'
'
',
',
'
'
'
laid
'
'
'
',
',
'
'
'
'
'
',
'
'
lections
Khan
'
of
opinions
juristic
and
'
Fatawa
such as
'Alarngirf
'
Fatawa Q&df
Textbooks supple-
'.
Observations
It
is
istration
be
to
of
observed that
justice
is
so
concerned
far
it
competent
men
as judges
age
four Caliphs and for some brief periods of time afterwards never had the full support of the heads of the
State, who more often than not assumed powers which
the law did not concede to them, and in their conduct isolated its vital principles. It is contended that
Islamic jurisprudence
or
absolute
which
consensus
191
accords
an
of
opinion
authority to Ijma'
furnishes by that doctrine a guarantee against such
uncertainty in the administration of laws as is capable
of being avoided.
In support of Taqlid
least
since
the
it
fifteenth
is
century,
it
within
the
fact,
the doctrine, in
questions
which
MUHAMMADAN JUKISPEUDENCE
192
'
'
( y;*J>).
progress
compared
to
me
of
It must,
the
Muhammadan
laws
to that of the
that
this
is
political
conditions
takable feature of
any doctrine
Muhammadan history
Muhammadan legal
of the
rather than to
system.
See chapter
i.
CHAPTER IV
EIGHTS AND OBLIGATIONS
ACTS,
tells
or
indicate
(2)
is
or
obligatory
effect
its
such
forbidden
as
legal
ownership,
connected therewith, for example,
right to conjugal society, right to the usufruct, whether
produce of property or services of man and the estab-
and
which
that
is
jo
^jSsia^t,),
namely,
acts, rights
(Mahkum
Classification
are classified.
Acts
(hissi
are,
first
^^)
and
of
^1^1 Jl*1)
An
sists
of
motion
the
^^).
acts Natural,
Natural
of
act of
some limb
of
25
'
Tau4ih
',
p.
^^
^^Jji!! Jlxil).
(af'alu'1-qalb
natural
into
jawarfh
classified
all,
410
'
;
Talwfh
',
p. 704.
and
MDHAMMADAN JURISPEUDENCE
194
man acknowledges
in his
mind
it.
Suppose
a multiplicity of gods
instead
deal
an
offence
salat or
of
prayer, a contract
sedition and the like.
Physical acts are broadly divisible into acts of utterance (Qaul J.5) and acts of conduct ('amal (Jxxc or
fi'l
Jij).
Utterances
consist
of
spoken
words,
or
motions of the body or a limb such as walking, hunting, striking, threatening as well as acts of omission
to discharge obligations (tark
cJy),
fulfilling one's contracts.
The
Voluntary and
involuntary
state
the
such as default
in
act,
classification of acts
195
ACTS
one's
(f
iJI
or
energy
are
cyls-ww),
2),
and
will,
tasarrui'at'ush-shari'
the
to
acts according
shara'
or
lawful acts.
acts
Juristic
are
generally
or originating acts,
whether
affirm
true
is
it
the
to
or
acts,
informa-
insha'at Originating
into
divisible
akhbarat
latter
or
difference
be-
an information
it
is
but
not,
is
possible to
not so with
of
The object
legal
like.
are
divided into Acts creating
again
generally
and acts
ithbatat (cylJUJh' or creative acts, that is, acts creating rights
extinguishing
a lease, a gift, etc., and r
rights, for example a sale,
jghts
Lawful
acts
(isqatat
such as
^'J'JLJ) or acts extinguishing rights,
2
such as
cannot be undone
v*aJb
whose
revocable acts
is,
that
is,
( -.~*iJb
legal
L,),
effect
not be undone
irrevocable acts
3
avoidance of a
sale
-Taucjih
Ibid,
in
',
p.
the
450
p 74.
exercise
'
;
Talwih',
of
p. 773.
an
'
option
'.
MUHAMMADAN JDEISPBUDENCE
196
which there is a pronouncethe law and which are also the cause
acts in respect of
ment
of
of
another
command
Whoredom
is
physical
ment
act
Muhammadan
nounced by the
(2) acts in
the law.
of
it
Example
respect of which there is a pronounceof the law, but which do not form the
cause of another
command
Ex-
of the law.
as
when
eating
bidden,
is
With
holds
forfast.
some
of the law,
command
act
to
of the law.
and the
juristic
selling
as permissible and spiritually
with reference
good
reference to
pronouncement
cause of a further
is
for
injunction.
distinction
juristic acts.
But
Similar
is
tion of life
law
For
instance,
designates
indifferent (mubah),
it
and
namely, transfer
acts which,
a
of
are not the
to
law,
subject
pronouncement
though
cause of any further command or consequence. Salat
it
further leads
of
ownership.
or prayer, for
ing to
to
legal
result,
example, is a
law it
Muhammadun
juristic
juristic
is
Acts classified
with reference
to their
religious
purpose
such mattars
is
to secure
viewed
with
All acts
reference to
spiritual reward.
their spiritual purpose may be thus classified.
its
spiritual
object
in
'Tau4ih',
p. 410.
ACTS
If
197
it
is
regarded
of the
Qur'an or tradiprohibition
by an
a
would
beof
the
act
nature,
authority
presumptive
do
A
to
to
the
other
is
bound
Muslim
long
category.
tion,
but
such
if
is
established
consists
in
the
this,
the
man
binding nature
of
but not
if
which such
command
a-
rests.
which
whole
;
sufficient
number
performed by a
Such acts are called
of Muslims, the law is satisfied.
furdun kifayatun (i/i= ^J) and may be described
if
these
are
as duties of the
is
an act
of
the doing of
at
this
it
community.
is
character.
it is called
sunnat
practice of the
Muhammadans
(iJui),
if
it
not forbidden,
is
it
is
called supere-
MUHAMMADAN JURISPRUDENCE
198
rogatory,
(lij
v^^
gious
will, to
give alms to the poor, the saying of
certain prayers besides those prescribed as obligatory,
by
fasting on days other than those of the Kamadan, attending the sick and the like are duties of this category.
are, however, some supererogatory duties of this
abstention from which subjects a man to blame,
as absence from congregational prayers and omission
If an act be such that abstento call out to prayers.
There
class,
from
tion
is
it
if
Of the class
..).
of
condemned
acts
are
there
omission of
it is,
giver,
(
IAXJ)
lease
or
of acts with
reference to
their secular
purpose.
it is
reference to
the
secular purpose
of sale,
pledge,
the law
if it
possesses
its
essen-
elements,
necessary
the law.
If
it
also
extrinsic character
Correct, valid,
vitiated and
void.
Transactions
permissible.
and the
With
Classincation
If
character.
said to be legally
as
possesses
the law
such qualities
takes
an
of
notice of
it
it
is
is
elements or conditions
it is
or
null
ACTS
199
ous considerations
a void act
is
'
in
faulty
law. 1
fasid or vitiated
conditions
is
(mu'amilat ,-JLA**)
is
binding
tive
if
(nafid
otherwise,
of
an
but
it
if
(_^aiU),
it is
if
it
called inoperative.
article
effect,
contract of sale
p. 651.
and
MUHAMMADAN JDRISPKUDENCE
200
who
not
it
its
is
1
A void transaction of the
operative act.
nature of contract or disposition of property is always
inoperative, and a valid transaction of this class is
and
an
always operative.
(lazim
rid
of
/.j3),
legal effect,
to a bequest
to revoke.
Essential
elements of
a secular
transaction
transaction
is
said to be binding
if
its
it
cannot get
(1)
entering into
legal
for
it
essential
fitness
or
instance,
fitness to
make
deration.
sale
act
Conditions
mony
of a witness
who
is
not a
man
the testi-
of rectitude is not
to be accepted is one relating to the capacity of a person for that particular juristic act. As an example of
Talwih
',
p. 651.
ACTS
201
The condition
that, in a contract
transactions
jurists
of a
of
under considerable
main reason
distinctions
with
Muhammadan
jurists.
t^>
'
26
and private
MUHAMMADAN JURISPRUDENCE
202
The
s>ince
rights
of
God correspond
Muhammadan
the
obligatory
devotional acts
community
there
of
God
no
is
as being
beneficial
to
the
as public rights.
What
chiefly
distinguishes
whose private
its
is
right
infringed
may
enforcement or not.
which give
individuals
It
some
more than the others but that
particular
fact will
individual
injuriously affected
by
the
in-
make
(1)
is
stolen
(2)
is
Matters
vidual
is
infringed.
The
right
to
'Talwflj', p. 705.
is
203
case of his
ment
of
The
the offender.
contrary view.
to
however, hold a
Shafi'is,
According
exonerate the defamer and the right to
prosecute passes on the death of the former to his heirs.
(4) Matters in which public rights and private rights
is
entitled to
retaliation
of the
community
murder
from the
arises
fact
of the offence
man.
satisfaction
the injury,
of
right to enforce
Classes
heads
it
therefore, their
is,
punishment.
and
(1)
and
are again
(3)
divided
that
the
is
pilgrimage (hajj
(ii)
z) and
Punishments
(salat
fasting
sJuo)
payment
(saum *yc)
and
jihad (j'-v0-
commission of certain
offences, for
known
theft,
as hadd, for
of
nature
to
the
example, punishments
slander.
(iii)
-clS),
of
Punishments
his right
of
person he has
of
inheritance,
if
he be an heir
Such a penalty
of
the
regarded as
imperfect as it inflicts no physical suffering nor
deprives the guilty person of anything of which he is
already the owner.
killed.
is
MDHAMMADAN JDRISPEUDENCE
204
(iv)
votion
ii.li^s)
Matters which partake of the nature both of deand punishment, such as atonements (kaffarat
the
for
non-discharge of
certain
obligations.
These bear
(v)
of
consisting in
devotion
involving
an obligation
to
an
impost
(jtiiJ.^),
of
one's
possessions
pointed alms at Eed-ul-fitr.
(vi) Imposts
having the sense of
ample
owner
(vii)
('ushr
y^c)
or
tithe
payable by a Muslim
(-.1^)
able from non-Muslims.
(viii)
Certain
(haqqun qa'imun
rights
which
exist
bi nafsihi
by
themselves
that
is, rights
^.^JM -jii
-)
which there are no active duties imposed on
any particular individual. Examples the right to onefifth of the booty acquired in religious wars which is re-
in respect of
while
the
waging
is
four-fifths to
nity.
commu-
205
that
it
exists
who
is
'
'
dependent
right
'
'
the
is
right
in
personam
of
European jurisprudence.
The Muhammadan
make
jurists
asl
a further
(J^\)
or
original,
and
(i_ali-)
God
or substitutory.
to
(tayammum)
is
allowed as a substitute.
A's right
Similarly, A buys certain goods from B.
to have the goods delivered to him is a right of the
right
to
Original
The
and Classification
of private
dependent, and original and substitutory runs through
n
the entire group not only of public rights but also of ^
private rights.
The
jurists
main
subject.
But the
1
'
Tau4ih
',
p. 414.
classification of
MUHAMMADAN JURISPRUDENCE
206
out of contracts.
arising
would be
classes.
But, as
we have
seen,
it
private rights according to their subject-matter, following the line adopted by the Muhamrnadau jurists with
The
of
right
direct
as
subject-matter
we have seen
in
another person.
(1)
>2)
right
to
(4)
Substitutory
according
rights of ownership
(ii)
rights.
sub-
.Jij);
(hurmat iu>..),
reputation
their
to
be classified as
to the Shafi'is
(3)
may
(iii)
(iv)
and
inherit-
(5)
(6)
rights ex-contractu.
is,
as
part of
the subject of
been so ordered
(*>..xiLoJb
^'juiil)-
207
(ii)
of family relations,
and possession.
Obligations of the classes (1) and (2) relate to acts
which are designated as obligatory (fard) and those of
the class (3) arise by the commission of acts which
are forbidden (haram).
Most Hanafi
jurists including
would
Fakhru'l-Islarn
distinguish
obligation per
se
r
t
SeaS
h
That
is to say,
the other
is
one
is
On
until then
from eternity,
fulfilment
for
ripe
only after a man
the age of discretion, and is required to
acts of devotion,
but that
it
is
becomes
has attained
only when the hour fixed for the performance of such devotional exercises has arrived. Here
be
the
fulfilled
attainment of
majority and
the
arrival
of
the
MUHAMMADAN JURISPRUDENCE
208
and
effective cause.
Similary if a
without fixing
man
sells
the
price,
called
discharge the
to
upon
demand
to
to that effect
is
obligation only
made on him.
Some
when
jurists,
Discharge
01181
spe^flc^r
non-specific
fail
to see
obligations
of
which
men.
Further the
are
the right of
specific discharge of
to
stance,
to the
well
it
may
as
may
be such
when
as
an obligation
God
is
is
said to be imperfectly
the slave be senthe
last
case,
discharged.
tenced to death or a limb of his cut off on account
of his offence, or if he is sold in satisfaction of the
tion
of
the
wrong-doer
If
in
owner
to
the
will
full
209
slave
cific
wrong-doer will be absolved from liability. The Hanaffs argue that the
wrong-doer in making over the
slave to his master has discharged his
obligation, and
act
of
the
master
any subsequent
emancipating him
cannot make any difference. But according to Shafi'is
the action of the wrong-doer would not be regarded
as a valid
by means
of
it.
of an
obligation may be
is
which
something,
intelligibly similar
discharge
according
there
the
Hanafis,
the
only in
some express
of
text.
authority
Thus,
do
not
allow
seen, they
recovery of
mesne profits from a wrongful possessor of another's
property, for according to them usufruct is in the
as
is
we have
restitution
satisfied
it is
27
'
Talwih
',
is,
p. 322.
according to Hanafis
MUHAMMADAN JURISPRUDENCE
210
when
such
there
is
authority for
by means
it
of property,
But
if it
has
be altogether uncompensated
The declaratory laws as
for. 1
already
mentioned
deal
conditions
and signs
of the law
former
is
latter.
If
as
its
result
one
to
is
or constituent
(,.^>,)
fact directly brings
as the
If
latter.
that
one
legal
regarded
ruku
called
the
'illat
of
the
(<ule)
fact leads to
not
say,
is
the
other.
If
the
existence
of
one
fact
be
is
or sign of
called the ('alamut
<ujlc),
the former.
here
that
the
Hanafis
draw a
distinction
between
',
P-
16 5-
faith in so
constituent, so
211
not negative,
An
effective
cause has
as a
is
three
aspects
referred
it
The different
effective kinds of
,
effective
tends to
in so far
(1)
to
is
it,
legal injunction
/,,.
.,
f
cause by name (Lo^J) ; (2) in so far as it
cause
bring about the legal injunction, it is effective cause
in
essence
(.Jut*)
and
in
(3)
so
far
as
it
im-
is
These
retaliation.
in
all
are
instances
of
sale with
cause
effective
an option and
lease
two
senses,
examples
of
effective
because
divorce which
is
referred
'
and a
of
effective cause of
two
An
senses.
falls
within
is
an
as
cause while
proprietorship
is
it
as
two senses,
is
emancipation and further the legal result, that is, emancipation follows immediately and is not postponed.
MUHAMMADAN JURISPRUDENCE
212
As instances
third
is
imputed to what
it embodies
because
The
marriage
cohabitation
presumptive
the
is
of
effective
be avoided as
but
it
fore,
husband remained
necessity for
larly
of the
same mind
at
its
end the
travelling
But
if
the effec-
'
Tadwih
',
p. 677.
213
act.
it
who
to a thief
Some
steals
causes
it
will
be
liable for
damages.
are preparatory
in a secondary sense,
of a contingent divorce or
for example,
pronouncement
manumission, as when a husband says to his wife
if thou enterest the house thou art divorced ', or a
master of a slave says
if I enter the house my
slave is free.'
In these cases the cause is the decla:
'
'
ration
called
is
it
event
which
For instance,
the
injunction is based.
cause for faith or belief in God
is
the
the
creation
by
the universe, but since this cause has always
been manifest in the physical and animal world, the
Him
of
as
although
valid,
believe
in
God
God by an
of
acknowledgement
is
the
law
infant
imposing
not addressed
to
is
regarded
obligation
infants.
to
Simi-
certain
the
existence
for
pilgrimage
payment
the
of
causes
of
;
the house of
produce of the
'ushr and
for
khiraj
punishments,
Ka'ba
is
soil
theft
the
is
the
cause
necessities
of
life
example,
MUHAMMAD AN JURISPRUDENCE
214
sale
is
When
sense
called
its
preparatory
cause.
For
instance, an act
produces a particular legal result, as already mentioned in the chapter on Analogy, it is properly called
the effective cause of the law in question.
For
it
and simple or
tive
cause or
condition
first
in
(2)
it
may have
sense a condition
which something
is
may be
proper that
dependent in fact or
is
in
one on
law, for
215
(!.)
'
times
after
the
effective
cause,
come
and some-
itself
while
into
condition
which
A
there
is
law
may
liability could
nor
to
this case
as an
As an example
effective cause.
of
a condition
a
preparatory cause
another man's slave in consequence
of which the latter runs away, the
unlocking of the
man
of
unfetters
fetter is
slave
legal effect
the
condition
depended
but
as
volition
is
MUHAMMADAN JURISPRUDENCE
216
As an example
of a condition,
which
so
is
nomi-
Here the
only in
Signs
first
contingency
name and
would
not in legal
be
condition
effect.
that
is
is
not imputed to
or a woman
man
legally
married (ihsan
it.
who
For
is
guilty of
the fact
whoredom
is called a
sign of
la*.))
laid down for such offence.
punishment.
instance,
condition
of
such
CHAPTER V
LEGAL CAPACITY
HAVING
that
persons,
(mahkum
those
is,
'alaihi
&Az
whom
to
law
The
...^a^v-cV
is
addressed
fitness
(ahliat
'
<uj.L1)
of a
actions
person
called
is
Dhimma
for the
(dhimma
defined
is
as
of
application
or legal
<iuj)
the
to his
capacity.
<dLc)
law
(<ulc U)-
is
c1o3) iJuljtl).
described
as
the
connected
with
his
The
into
28
'
Taudih
',
p. 419.
MUHAMMADAN JURISPRUDENCE
218
develops
itself,
until
it
is
perfected
Circumstances
affecting legal
capacity
generally
Person of full
Artificial
person
affect legal
capacity, although
it
is
its
legal capacity
which
j^.ly:),
forfeiture
hostility
to
slavery,
or
either wholly or
the law, such as
cause
its
by reason of
apostacy, unbelief and
partially
suspension
in
order
to safe-
Imam.
discharged
But
later
Circumstances
affecting legal
capacity in
application
of
law
to
the
which
affect
the
person whose
These circumstances
acts of
is not affected.
particular cases general capacity
have relation to the state of volition and knowledge of
the doer of an act preceding or accompanying such
act, for
etc.
facts,
LEGAL CAPACITY
The Muhammadan
219
samawi
particular cases into two classes
are the work of Proviwhich
circumstances
or
( _.Lo"')
dence, that is, those which are beyond the control of
actions in
man and
is,
non-Muslims and
heretics,
or ignorance
a particular
are attributable to the person whose acts are in question, such as ignorance, speaking in jest, drunkenness,
while duress is a circumstance
folly and mistake,
created by
its
men
more convenient
from
ture
But
influence.
the
legal
It
capacity.
also be observed here that circumstances like
may
an
act
is
affected
by the condition of
on Usul enter upon
in
mind
a
how
Muhammadan
of
its
doer,
jurisprudence
some writers
lengthy disquisition
on the
acts to
MUHAMMADAN JUBISPEUDENCE
220
Predestination
and
free-will
my
that
is
purpose, however, is
so far as it has a juristic
such discussion
of
result
All
significance.
According to the accepted Hanafi view, which is substantially the same as that of the other Sunni Schools
on this point, a man's action is partly within his
power and partly the result of God's interference. It
is so far within his power that he is left free to choose
between the doing and not doing an act. This power to
choose
is
called (ikhtiar
is
of the
two
said to intend
it
that
is,
will or volition.
jjjl.} j^aS).
If
it
is
only so
is
when
Muslims,
followed
Difference
between
Muhammadan
jurists,
'Talwilj', p. 355.
that
condition of
the
which
directly
and
221
the
sets
immediately
consented
to.
An
vitiated.
the
result
fit
state
an
act
of
not
makes
that
voluntary,
instance,
when
is,
man
hands in
sleep or in a fainting
forgetfulness or drunkenness is
the will or volition at all, but is
his
or in
it
is,
not
is
for
choice,
moves
or
talks
of
it,
which
act
that
of
involuntary.
A man
it
to
shut
out
the
other alternative.
This dis-
tinction,
for
however,
choosing
as
terms.
An
act
affect
be
to
tarwa
t_fj.ill
negligent,
^>/)
heedless
otherwise
is
it
often
(shauq
at
by
the act or by
careless
(turku't-
moved by
its
is
,~.+2>)
'
ff
.
aimed
or
p.
immediate or remote
787.
expectation:
MUHAMMADAN JUEISPEUDENCE
222
and
results
motive
wish
is
called
motive
the
(niyat &*>)
my
the
of
act-
entering into
the necessary contract with reference to the house as its
object, and the motive for my doing so may be to
pay
off
sum
of
I intend
my
diate result of
my
property to a
certain
Or
act.
if
friend,
make
what
a gift of my
I intend is the
and my motive
enrichment
of
such
friend, or
may
in
the
reward
next
world.
Motive
may be
spiritual
or
laudable
and
as a
or
secular,
fraudulent,
spiritual
it
has
a
than
a
rather
general rule,
religious
legal
by which
juristic act
for
be
it
gift is constituted
the
significance, unless
it
motive
may
'
the law
in
the
what
was
his
would
words,
Different
niyat
using
inquire
meanings of that is, whether he meant by it divorce or not. This,
niyat
however, is to be distinguished from the question of
intention properly so called. Here whatever the man
might have meant, he intended uttering the words,
unless he uttered them involuntarily as in sleep.
As intention in connexion with an act has rewife
I shall
ference to
its
object, so
it
',
has reference to
its
legal
effect (hukm).
Similarly consent has reference to the
Sometimes a
act itself or its legal effect or both.
man may
may
223
legal
And
it.
it
itself,
;
man
is
it
should
have any
sense
of the
said to intend
effect.
to the
Such a
man
is
formation of the
question, but not to intend or to consent that such act should have legal effect.
juristic act in
Muhammadan
tinguish
three elements.
The same
is
complete
the
With
tation
(ghurur
..y-)-
Fraud according
to
Muhammadan
juris-
MUHAMMADAN JUEISPRUDENCE
224
the doing
effect.
The
cases
is
affecting legal
capacity in
generally
ignorance
Instances of
circumstances
(jahl
Forgetfulness
such
in
any
other words,
act of men.
it
is
Such a
not a
state
drinks something.
excuse if the act
private rights.
a man's rights
which
The reason
is
is
absolute and
Therefore if
culpability of the person violating them.
a man in a state of forgetfulness destroys or damages
another's property he will be held liable.
Sleep
is a
condition which incapacitates a man
the
time
it lasts from perceiving by means of
during
his senses and from all voluntary movements.
As
Sleep
sleep
for the
same
reason.
225
amount
of
compensation (diyat).
According to Hanafis the words of talaq uttered
by mistake operate as a divorce. For instance, if a
man intending to say to his wife thou art sitting
makes a slip and says thou art divorced ', a valid
divorce will be effected. The Shafi'is, however, do not
agree with the Hanaffs on this point. The Hanafis
base their view on the general principle that the law
accords full effect to a man's words and deeds, and
does not undertake to ascertain hidden facts which,
according to them, cannot be done with any cer'
'
'
tainty.
As
it
is
difficult
to
say
when
man's act
attributable to his intention and when to a mistake, the law presumes that the words uttered by
is
grown-up
result of
are
person
The
intentional
Shafi'is
and
that
not
the
a divorce
argue
slip.
under a mistake is inoperative because
of want of intention, and that such a case stands
on the same basis as words uttered by a sleeping
man which admittedly have no effect. The Hanafis
pronounced
over
this
attempt
the
state
to
get
of
is
reliable
fit
226
MUHAMMADAN JDKISPRUDENCE
must be
present.
Intention
is
both
in
to exist
said
that
the
Shafi'f
incapable
heavens.
of
its
earth
the
discriminating
As regards
effect
looks to its
Eegarded in
on
cause,
this
from the
man's legal
that
light
is,
it
is
how
of
it
two
such as
opium, or by the use of preparations having the properties of food made from wheat, barley or honey, is
8
The
permitted by the law as spiritually indifferent.
is
available,
legal
capacity of a
man
is
affected
by
intoxication
the
is,
same
to
say
22?
divorce, marriage,
1
lending,
interests.
although they
etc.,
He
is
be injurious to his
any crimes and wrongs
may
whoredom, destruction
the
is
if
like.
theft,
The reason
is
and
it would
be encouraging disobedience of
the injunctions of religion.
Furthermore, the commands of law are addressed to drunken persons since
God has said
Oh ye Muslims do not approach your
while
ye are drunk.' If a Muslim in a state of
prayers
otherwise
'
'
to Islam.
'
Talwi'h
',
p. 771.
MUHAMMADAN JURISPRUDENCE
228
But
is
Jest
if
is
no heed to
it
transaction
in
question,
so far
as its
legal formulae
may
and
(3)
matters of faith
(i'tiqadat).
As regards
origi-
a secret arrangement
i
'
in transactions of
Tau<}lh,' p. 449.
the
an
If
illustration.
the
parties
who
229
of a sale as
entered into a
On
of
sale,
the other
hand,
arrangement was
to
if they
agree that the secret
be the basis of the transaction
was made
in
supersession
and
substitution
of
that
arrangement, then according to Abu Hanffa the contract will be upheld as valid and the secret arrangement will be regarded as cancelled. In the opinion
of his two disciples, however, the contract will not be
given effect to for, according to them, the previous
what was
it.
But
differs
if
the
consideration, as
previously
arranged,
itself
not
MUHAMMADAN JUEISPEUDENCB
230
in
quantity
one
dinars then, in the opinion of all the three, the consideration mentioned in the contract, namely, one
hundred dinars,
will
be payable.1
of
as
The reason
the
The
given to them at once, and such effect is not capable of being avoided.
Hence, in these matters, an
option to revoke is held to be void. The authority for
this is a precept of the Prophet, in which he lays down
is
When
property
is
they intended to resile from the previous arrangement, the dower payable will be two thousand and, if
they agree to the contrary, the amount payable will be
riage,
'
'
edition, p. 501.
'
231
make
or to
it
them
either to
discard
or to
act
named
in
Where
manumits
of a
his
slave
one
or
other,
at
or that
it
the
of
them
either to
MUHAMMADAN JUEISPEUDENCE
232
same even
to abide
divorced
his
inoperative, just as
With regard to
of
words
or
wife,
it
if
matters
of
un-belief
denoting
the
faith,
without
is
utterance
intending
to
This
is
constituting the Islamic faith, though without intending that it should have any effect, he will nevertheless
religion.
Coercion
The
be injuriously
affected
of
responsibility
act and towards
thereby.
The
the
by the act
who may
what
is
the
last
(3)
aspect
of
',
the
may
be affected
question appertains
pp. 454-6.
233
Coercion
of
or
its effect
if it is
prisoning,
as non-constraining (ghairu
by im-
exercised
it
maljiin ^^sL*
is
regarded
Both
-)
choice.
If
man
law are
much
as
who
is
some
acts
done under
such influence
are
obligatory on a
he is otherwise
man
to drink
intoxicating liquor,
if
liability.
MUHAMMADAN JURISPRUDENCE
234
person subjected to
threatened
Coercion,
suffering.
nevertheless,
vitiates
which
(qaul),
require consent
their validity,
lease, admission, release
for
for
and
instance, a sale, gift and
the like, would, if entered into under coercion of the
ratified
if
afterwards. 1
But
acts of
utterance
which are
even
if
is
valid,
does
not
intention
negative
or
',
when
jest,
man
he chooses
cause,
namely,
that Sadru'sh-Shari'at
jest.
'
Talwfh
',
S'TfWjik'.
p. 795.
p. 474,
effected
but
the
cannot
consideration
be
enforced
against her.
the act
If so,
is
man
act.
instance,
is
compelled
by
to
sell
and deliver
coercion
is
bad,
as
already
mentioned.
The
result
it
it,
for
is
whether
coercion
MUHAMMADAN JUBlSPfcUDENCE
236
person makes himself liable for an offence by admitting that he committed it, if he makes the admission in his own words.
a
P- 791-
If the act to
man
is
237
held
be
kill
The
but
heading of circumstances affecting legal capacity
is more
such
circumstances
their
list
of
apparently
or less illustrative and does not purport to be comFraud, as I have pointed out, affects a man's Fraud
plete.
judgement but not his intention or consent. It follows,
therefore, that acts which are not capable of being
undone, such as divorce and manumission would be
;
valid
a lease
and the
like
would,
if
vitiated
by fraud, be
The ignorance
of a judge or a jurist
contrary to a text of the
Qur'an, or a well-known tradition or contrary to consensus of opinion will not be excused. In other words
secular
sense.
who expounds
rules
of
law
if
law
the
opposed
to
'
'
'Al-Majallih', p. 52.
'Tau4ih',
p. 445.
regards
is
more
MUHAMMADAN JURISPRUDENCE
238
A man
found
and
his
person
with his murder. If fol-
dead
is
in
Qdf
even
opinion.
The reason
if
is
so
opposed
own
the
be
current
juristic
as already indicated is that the
law on a point not expressly dealt with by a text or
concurrent decision of the learned is regarded as un-
certain,
so that
respect
to
it,
such law
is
it
For instance, if
Muslim State after embracing Islam happens to come
to a Muslim country and there drinks intoxicating
tion.
a fact
for
is
instance, will
not be
demand through
lost,
A
if
ignorance of
pre-emptor's right,
he
ignorance of the
failed
fact
to
make
that
his
MUHAMMADAN JURISPRUDENCE
240
Immaturity
of or defect
understanding
affects legal
capacity
Pwer
of
Human
a person
in
understanding
his
affects
individual,
the
power
the
of
But
mind
a particular period in
as
human
under
varies
law requires
certain and uniform to proceed upon, it
different conditions.
something
fixes
upon
regarded as major.
to be
it
is
in fact, be
yet,
physical
It also
is
<uij)
though
person
may
and
is
regarded as
also
in
volition
of
lessor
degree:
entirely lose his
by
reason of
defective
disease
such
who
is
seized
person
son
capacity
legal
Sometimes a grown-up
power of understanding
ously
man's
Infants
faculties.
womb
of its
mother
is
a person
the contemplation of law and is, therefore, possessed of inherent legal capacity, which, however, is
in
as an embryo's life is
regarded as defective inasmuch
Because of such
not independent of its mother's.
241
womb
fastened with
cannot, however, be
liabilities.
For instance,
it
On
As
obligations as
to
And, generally
discharge.
acts and transactions of a minor
ever
only such
discharge
him
of benefit
injurious to his
regards his liability
is
to
interests will
for
be disallowed.
an
acts of conduct
his
infant
is
bility
subject
the person
to
such
the
causing
of
obligations
He
loss.
is
also
a benevolent nature
of
another
the
tribe.
who has
person
He
is
31
killed
member
Taucjil?
',
p. 730.
p. 421.
of
which
MUHAMMADAN JDEISPEUDENCE
242
An infant's
respect to
public rights
to " e
be
the saying
such as can
instance,
of prayers,
by
discharged
means
of
property,
such
as
the
He
of poor-rates.
is exempted
from devoacts
of the
former class, because of his
payment
tional
in
of
respect
them
from
is
personal.
An
infant
is
also
exempted
there
is
all
a difference of opinion,
Muhammad
holds that
it
is
necessary for
But an
in
trade.
or
making a
gift or
waqf
of his
property, or
lending
money.
Similarly a bequest
laid down that it
because
it
that he
is
of
an infant
better
is
heirs rich
rather
243
is
void,
for a
man
than they
may
evident
loss,
be held valid
will
it
in
the
opinion of
or evident loss
to
according
disposition or a contract by an infant not possessed of discrimination is altogether void. The test as to
of
guardian.
But according
to
Shafi'is a
the
in-
tervention.
The
status
of
an infant so
far
as his religion
He, therefore,
Muslim State
.
is
if
his parents
Status of an
infant follows
**
,
parents
j.-
Muslim wife
i
This
madan
is
will
his
law.
'Tau4ih', p. 425.
3'Al-MajalUh',
p. 152.
is
prohibited by the
Muham-
MUHAMMADAN JURISPRUDENCE
244
The
have
benefit,
apostate is not liable to the sentence of death, because such a sentence is inflicted not because of
mere apostacy, but because of the possibility of an
apostate
shown by the
sentenced
to
fact
death.
that
female apostate
A Muslim
infant
is
who
is
not
has
is
difference
of
opinion
among
the learned
The
the
minimum
Lunatics
is fifteen
maximum
in the
years.
The legal capacity of an insane person except as
to acts done in lucid intervals is affected in the same
way
as that of
in case a
'Al-MajalWh',
p. 157.
his
to
245
juristic preference,
but
him.
This
according to
is
according
the
analogy
rule of analogy
is
no knowing
when,
ever, the lunatic will recover, while in the
case of an infant, he is sure to attain majority and
his Muslim wife will not have to live with him inif
If a
definitely.
jurisdiction of a
a Muslim.
An
idiot is a
person
who
is
like
lunatic.
But
non-Muslim
if
idiot's
wife
But
it.
as
in
him
as
understanding
is
injunctions
does
not
case,
deny
be
that
such
interdiction
is
obligatory.
MUHAMMADAN JURISPRUDENCE
246
necessary,
restraining
Insolvents
alienations
and dispositions
Muhammad
thinks otherwise
^iL*),
be
debts
his
to
or
more,
if
he
the reach of
his
attempts
place
property' beyond
his creditors by transactions apparently of the nature
of a
sale or the like, but subject to some secret
is
Slavery
law.
In
its
may
or non-acknowledgement of the authority of the Lawgiver, and, therefore, the creation of the condition of
slavery is said to be a public right. Further, when a
man denies the authority of the One perfect Creator
to take notice of the proofs that exist in
connexion, he reduces himself to the level of a
by refusing
that
Though
is
a public
if
an
infidel slave
a slave,
for
becomes Muslim, he
otherwise
still
'
'
pp. 457-8 ;
Al-MajaU4h ', p. 154.
Tavujfh
',
remains
'
Al-Majallah
',
pp. 158-9.
247
him
is
emancipates a
This
absolutely free.
Abu
that
slave
may
But, according to
part,
is
be
all,
Though the
public
nature
creation
a
of the
slave
right, yet
of property, the
status
slavery
substantially in
being
master
of
allowed
is
to
is
right by
Manumission
abandon
the
of
in
as
thereby
man
is
restored
to
his
original condition.
disability and degradation makthe
a
slave
property of his master the former is
ing
not competent to own property. Hence a Muslim
slave is not bound to perform pilgrimage, because it
As slavery connotes
who own
is
A slave cannot
own
property
property of a
competent
to
acquire
If,
a free man.
What
is
meant
is
that a male
MUHAMMADAN JURISPRUDENCE
248
slave
restricted to
is
of four,
and a
wife will be irrevocably divorced on pronouncement of two talaks instead of three, one and a half
slave
consists
'iddat
capacity for
two courses.
of
is
marriage
female
is
slave's
to say,
He ia entitled
to the
protection of
his person
a slave
makes himself
a slave
murder, or hurt, or
liable to retaliation.
incurs
theft
the
Similarly
offence of
punishment of
abandon
to
But
it.
as
a slave
than a free
by him
is
offence
where
the punishment
the
number
and
the
man.
For the same reason, that
free
A slave
incompetent
to hold offices
of dignity
Not a
is
man, he
Mutwalli or Qadi.
competent
witness
Non-Muslims
What
is
Islam
meaning
of
law?
In Arabic
it
is
technically expressed
249
in one
said, in
His Prophet.
either respect is
Non-Muslims
Atheists (dahriatun
existence
of
ijfcJ), that
Creator.
(2)
those
is
who deny
Thanawiyatun
(Joyj)
the
or
the
of
Prophet's
mission.
(4)
Idol
those
worship-
who deny
God
than
one
who
believe in
in
more
the same
placed
category as Magians. (5) Those who believe in the
existence of one God, the Creator of the Universe, and
in
the
truth
of
Muhammad's
mission
but
do
not
sects.
and
what may
into
To
heresy.
the followers
political
the heresy
of
of
32
'
Durru'l-Mukhtlr',
\ol.
Mu'tazilite
of
of
iii,
theology Mu'tazilis
312.
heretics
MUHAMMADAN JUBISPEUDENCE
250
The
was
of the Shf'ahs
defection
origin.
Different grades
of heresy
The Sunnfs
The tendency
to charge
almost
Muslims
-with
unbelief
condemned
amount
the
Mu'tazilis
the
question
of
differ essentially
'
quotes
that
some
heretical doctrines are opposed to clear and indisputable texts they would amount to unbelief but not
Ibn
otherwise.
'
Abidin
then
that
observes
many
who
It is also
'
'
'
of fatiwa. 1
1
'
Raddu'l-Muhtar
',
vol.
iji,
pp. 319-20.
251
At
the
present
Some
ever,
recognize Ijma'
descendants of the Prophet.
The
Schools
application of
Muhammadan
law
to
is
'
faith.
But as
to
such doctrines
of
his in
which
toleration
'
MUHAMMADAN JUBISPRUDENCE
252
madan
law.
For
is
will
not
enforce against
him
the sentence of
hadd.
Magian
subject of a
within the prohibited degrees of relationship as reckoned in Islam, and the Court will, if asked by the
wife, pass a decree against him for her maintenance.
So also, should the Magian who contracted such a
marriage afterwards embrace Islam his previous conduct would not be considered a justification for any
days of
Adam when
it
lawful except
in
the
of abso-
lute
of such
jects
and
For instance, if some infidels hold that theft or
murder is lawful, the Islamic law will not uphold such
doctrines.
Apparently the writers on Islamic jurisprudence did not consider the possibility of any com-
253
m unity
or
sanctioning such offences against society
did
would
hold
that
such
crimes,
they
they
perhaps
though prevalent and even sanctioned by a community
;
if
of
really
religion.
Except, therefore, when there is a real
laws in the sense above indicated, the
conflict of
Muhammadan law
relating
non-Muslim subjects
to
of a
and
punishments
between
transactions
Muslim
applies
State.
As
to
to
the
to those
Muhammadan
the
next world.
in the
places
The
law,
outside
apostate
the
however, by way of
of
protection
law.
will
He
it
will be given
by argument.
days to re-embrace the Faith, before the sentence is
passed on him. But since by the very act of apostacy
a man loses the protection of law, if even before the
chance of re-embracing the Faith has been given to
him, a Muslim kills an apostate, it will be considered
as an improper act, but he would incur no penalty of
the law.
So long as the sentence has not been passed
on an apostate, he will be allowed, according to the
two disciples, to retain possession of his property but
Abu
according to
Hanifa,
it
instant of apostacy.
Since heretics believe in the unity of
and the mission of the Prophet, the
Godhead Heretics
the
Muhammadan
laws
of
power
it
is
determined
instance,
of the
of
the
if
by
a sect of
his
Muhammadans
Imam
and
set
territorial
to
upon the
is
to say,
For
jurisdiction.
like the Kharijfs
recognize
up a government
the
authority
of their
own
MUHAMMADAN JURISPRUDENCE
254
fully
in order to reduce
them
submission,
if
Imam
the
Persons in
and creditors in the property of the deceased from the inception of such illness, death itself
being the effective cause of succession (khilafat) and
of the heirs
inheritance.
What is
death-illness
ness from
which death
is ordinarily apprehended in
in
the
cases, provided
particular case in question,
in
But if the disease be
has actually ended
death.
most
it
not
does
year
down
to be
>
'
of
f>. !
The compilers
that death-illness
Hediya
',
vol.
he,
p.
889
is
'
it
cases,
Al-Majallah lay
that from which death
apprehended in most
within
dies
of
Kifiy
',
vol. ix,
p.
389
'
;
Inaya
is
',
255
the
patient
his
hoase
itself into a
and his condition does not change. But if such chronic illness increases and his condition changes so that
he dies of it, then such illness from the date of the
change in his condition if the change be of the nature
1
above described will be regarded as death-illness.
The definitions as given by the Shafi'i and Hanbali
jurists are also to the same effect, namely, that deathdangerous to life, that is, which
mostly ends in death provided the patient actually dies
of it. Instances are mentioned in the books as to what
illness
is
illness
Fatima Bibi
in
v.
is
of
laid
down
competent
it
Ahmad Baksh, 3
that
no particular incapacities
cases
is
whether the
illness
was
of
such a character
down by
it
in a majority
and
Hanbalf Schools of law, this question is one to be
ordinarily determined by medical experts, or by the fact
that the patient is incapacitated by the illness from
of cases,
and as
to
laid
his
usual
avocations.
But
as
attending
1
Al-Majsllih ', pp. 264-5.
Tuhfatul Minhaj',
*'Al-Wajfz', p. 272;
'
Nailu'1-Ma'arib', vol.
3
4
ii,
p. 11-12.
10C.W.N,,449,
vol.
Hi,
p. 36, et seq.
MUHAMMADAN JURISPRUDENCE
256
by
the
sick
of death-illness.
man
In
himself
fact,
is
it
form any
an event of
placing an
it
his heirs in
by disappointing
tions.
But
the law
this
is
on the point
the principles of
their
is
founded and
Muhammadan
according to
it is not
jurisprudence,
when
in appeal.
The
them
rights of
heirs and
the
the creditors
attach
of
comings
life,
he
is
The heirs
disposition over one-third of his property.
an
absolute
of a person have
right, therefore, to the
two-thirds of his estate in the event of his death subject to the
payment
of debts.
Hence when
man
is
thirds
'See 35
of
the
Gal., 271,
remainder.
also
person
\.
is
allowed
Saiboo 35 Gal.,
to
1.
in such illness
257
if
need of
the
for
limits.
its
if
it
to be revoked
to
impeach
the
transaction
to
the
whose manumission
extent
is
thus
He cannot sell
paid.
one
of his creditors or
any
heirs though for a proper price but a sale
by him to a
stranger for proper consideration is valid. Any disposition of his in favour of an heir is
altogether void
because even the appearance of preference of one heir
entitled to a share in the
amount
is prohibited,
although there may not
be any preference in fact.
The effect of death on the rights and obligations of Deceased
the deceased is considered with reference
to twoP ersons
and
regards
As regards
the
rights
succeeding
33
trustee.
Similarly
any
property
of
258
MUHAMMADAN JURISPRUDENCE
nature of a
benevolent act
(sila
Lc)
As regards
in so far as
may
coffin
and
burial,
secured
'
Tahvfh,' p. 757,
debts
might be
like
satisfied,
259
ordained succession.
as an act of
a person, necessarily
such
person. Hence
heirs before his
Abu Hanffa
the right of
held that
retaliation
does
The
is,
. .
..
entered into
between a
Daru'1-Harb, so that
the benefit which
Thus
Muslim and an
infidel
in
a transaction
between a
under a non-Muslim government is unobjectionable
though it would be vitiated in law if entered into
within the jurisdiction of a Muslim government, where
tract
be by his consent.
For instance, if a contract of insurance is entered Insurance
into between a non-Muslim partner in trade of a
Muslim resident in a Muhammadan country on the
one hand and an insurance Company carrying on
Business in a non-Muslim country, then if any money
it
MUHAMMADAN JURISPRUDENCE
which is realized on the policy is sent on to the Muslim partner, it will be halal or proper for him to take it.
Here the contract having been entered into in a non-
of
the policy having paid it willingly and without deception, there would be no objection to its passing to the
Muslim. The contrary would be the case, if the contract were entered into in a Muslim country even if
the
amount was
>
'
1
paid in Daru'1-Harb.
Raddu'l-Muhtar
',
vol.
iii,
p. 271.
CHAPTER
VI
OWNEESHIP
I
by the
Muhammadan
fourteenth
sideration
centuries, but
the
is
jurists
as
the
subject
under con-
It
is,
more systematic
in order that
we may
realize
their true
juristic
which I mean to
connexion is that which is indicated by
the division of laws into their several departments as
made by the Muhammadan jurists themselves, namely,
laws relating to mu'dmalat or dealings among men
munakahat or matters relating to marriage, that is,
family laws
'Uqubat, that is, remedies and punishments Adabu'1-Qadi, that is, rules for the guidance of
the magistrate or procedure and As-Siyar which deals
with the administrative laws and the law governing
I do not
the relations of Muslims to non-Muslims.
here propose to deal with questions appertaining to
'Ibadat, or acts of devotion, as they do not come
within the purview of jurisprudence, and I have already
significance.
adopt in this
The method
of study
II.
MUHAMMADAN JUBISPEUDENCE
262
dealt with
Milk or
ownership
the stu-
milk
The
proper subject-matter of
physical objects, but the word as used by the
covers a wider range of ideas than those
as
is
jurists
ownership.
So long as this
included in mere proprietary rights.
is borne in mind there is no harm in adopting the
word ownership as the nearest English equivalent
'
'
of milk.
Milk
denned
is
'
Viqayah
in
'
Sharhi
man
between a
Sadru'sh-Sharf'at
by
his absolute
power
.i)
which
is
under
exclusion of
person
called
milk
the
malik
(cJJU) or
is
power
exclusive
extends
object, or
what
may
the
be mal
juristic
(JU), that
which the
conception of
is, a physical
(Manfa'at
of a physical object or of labour and services of man,
or
muta't
The
last
relating
p. 178.
p. 325.
Al-Majallah
',
p. 20.
OWNEESHIP
263
rights of possession,
is,
that
(jo!)
and milku't-tasarruf
right of disposition.
The
first
expresses
the fact of the owner being specially identified with the
thing owned, and it leads to rights of the last two
4_J_ol!l),
is,
Mai
for
that
or
defined
is
secured
use
to
not property, as
is
The author
'
of
ml
it is
not lawful to
Baddu'l-Muhtar
definition
last
'
observes
that the
kill
him.
in
con-
attribute of
being fit for the use and advannot in the power of the owner to
consists in its
tage of
men and
destroy
it.
mittedly
He
further
property
urges
that animals
is
are
ad-
prohibited
from
killing
but
has a
it
much narrower
'Tatujfh', pp.
munity on
'
432-3;
'
Talwfh
Musullumu'th-Thabit
'
',
p.
also
'Talwfy', p. 325.
See
Baddu'l-Muhtar,' vol.
'
iv, p. 3.
751;
'
Bahru'l-'Uliin
Mullih Nizamuddin's
'
comnotes
of
.MUHAMMADAN JUEISPEUDENCE
264
still
of
if
to persons to
wines and
which are
pigs
declared unclean (Najisun bi a'inihi <LUJ*J ^AJJ) is forMuhammadan but as their use is lawful to
bidden to a
minimum.
the
Things which
cannot be
1 *'
property
sale.*
common
use of
all
(al-ashya'u'1-mubahatuTuniumiah
as indispensible to individual and
social
life.
These are
water of
public roads and com-
air, light,
fire,
grass,
Light and
air
human
What
Fire
is
that
is
its
meant by
light and
fire
being
common
warmth cannot be
to
all
men
exclusively
might be an interesting inquiry what the ancient Muhamwould have said, if they knew of the enormous prices
sometimes given for mummies by modern millicnaries and scientists.
Hedaya' and Pathu'l-Qadfr ', vol. vi, p. 42.
i
It
madan
jurists
'
'
'
Kaddu'l-Muhtar
',
vol. iv, p. G,
OWNERSHIP
265
away
warmth and
heat,
the cinders.
becomes property.
to all men, so long as it is not "Water
or
cut
off
from
its source of supply, such
separated
as by collection in a jar. If the collection be such
that the water still remains connected with its source
vated or cut
Water
it
common
is
as in a well or a tank
it is
common
of water
i) or the use
gating the
(ii-i)
fields,
for
is
of
property, though
the purposes of
irri-
and shufat
water of the
small stream
provided
it
is
water through a sluice or a canal. A necessary limitation to the exercise of such a right arises from the fact
that other members of the public have also a similar
Hence no one can so drain off a public river
right.
or stream as to exhaust its water, or so to diminish
it as to injure
navigation or not to leave a sufficient
supply for others.
A stream would
be
called
private
if
it
has
its
The
but
is
it
like
any other
MDHAMMADAN JURISPRUDENCE
266
right
owner
Common
pasturage and
forest
of the land.
The
width
is
public
the house
of
may
the road
obstruct
provided
traffic.
it
be
one side
and
does not
necessary
public road
is
the
common
prop-
the public
It will be
observed that in some of the things mensuch as water collected in a well, the
tioned above
OWNERSHIP
267
stand on an
equal footing.
the above-mentioned
limitations, most
become
may
property, but until they
are turned into property they are open to the use
of all, for example, waste land (Mawat
c^ljx.), Sayd
to
Subject
objects of
game, that
(juu?) or
the
in
fish
trees
nature
sea
is,
or
and so on.
of forests
river
We
moveable
(manqul
manqul Aai
marily meant
J JiJU) and
immoveable
By immoveable
.*.)
(ghairu
property
property
is
pri-
be
destroyed
accidentally
in
the
meantime, he
out
'
Heddya
',
immoveable
MUHAMMADAN JUB1SPKUDENCE
268
Whatever
is
as
treated
purposes
Therefore,
separated.
tures pass with
before severance
part
of
when
land
it
is
until
many
detached
transferred
or
all fix-
oil
tale
and madhrii'at are also comprehensively called muqaddarat (c^l.jJL*)- Gold and silver
mauzunat,
are also
'adadiyat,
called
or
nuqud
price.
(Jyu)
moveables
other
above-mentioned articles
'u'nid
or
(,>j. c)
and haiwana't
Similars and
dissimilars
But the
g rea test
similars.
(eJjl^)
importance
of
in
(^Hc)
or animals.
and
qimi
^3), which
similars and
translated respectively as
article is said to belong to the
generally
the
are
mostly
as
articles
such
of
furniture
goods,
classification
Besides
An
are
dis-
class of
it
can be had in the market
such
difference
between the two
without there being
as people are apt to take into account, in their dealings.
similars
if
the like of
such articles are ordinarily sold by weight or capacity, they are called similars of weight or capacity,
If
such as
gold, silver, grain, oil and the like.
If
by
tale
they
are
called
similars
of
tale.
OWNERSHIP
269
The
and
dissirnilars,
.,,
(ij-*
;na '
c )'
'
ls >
indeterminate property.
The chief
distinguishing test is whether, when a man is to get
certain property from another who either borrowed
or non-specific or
it
from him
recover
specific
he is entitled to
he is, then it is called
or determinate, and if he is not.it is called
it
in
or
took
it
by
specie or not
force,
if
non-specific or indeterminate.
Articles of the class of similars cannot, as a rule, be
recovered specifically, and are thus regarded as dayn or
indeterminate property.
shape
maunds
of
rice in his
godown agrees
to sell to
hundred maunds
lent another a
of rice
sum
of
money
is
all
indeterminate prop-
'Al-Majalldh'.p. 22.
'
Ibid., p. 22.
MUHAMMADAN JUEISPEUDENCE
270
Use and
enjoyment of
property
the
in
It is
very
it
generally
respect,
its
His rights
as he chooses.
only limited
speaking, are
The
bours.
general principle
to use
it
the
that
is
owner
of
entitled
is
he
of goods
nevertheless
this
would attempt
him considerable
cause
may
not
is
to
such
loss
But suppose he
prevent.
but
law
injury
as
the
sets
up
Nuisance
such
a nuisance
that his
neighbour
cannot live in
in a place
character
noisome
new-comer must
business or trade of a
established
is
already
put up with the inconvenience. What is or is not
a nuisance is determined on the principle whether
an act or the manner of doing an act causes manifest
neighbouring property
which
it
is
devoted.
If
the
.-<j)
to the
act
man
it
as
weaken the support of the adjacent land or building the injury would undoubtedly be regarded as
manifest and' gross. Similarly, if a man so builds on
his land as to obstruct altogether, the light and air
to
of
his neighbour's
a nuisance.
'
Fathu'l-Qadir
',
OWNERSHIP
The burdens imposed by
271
immove-
Some
of
the
rights
incidental
to
property
may Some
of the
be
j^^^
the
to
a minor
and a lunatic are not allowed to have possession of their property until their disability has ceased,
nor have they any power of alienation. And as already
mentioned, the law absolutely forbids the destruction of
a slave's life and also puts a limitation on the right, to
destroy other kinds of living property, such as cattle.
may
be suspended or
of the
For
rights of others.
he cannot destroy it before paying his creditor.
Ownership may be sole or joint. When property is Sole and joint
owned by two or more persons in undivided shares ownership
described as sbirkatu'1-milk
(eJJujj) ai^^i). Each
of the co-owners has a right to his share in
every
portion of the property. The Muhammadan law as a
general rule does not recognize joint tenancy in the sense
it
is
of the
of his share
nature, however, of undivided property no individual coowner can have exclusive possession of or dominion over
the thing and there is thus a confusion of
rights or
musha'. This as we shall see considerably affects a co'
'
The
a house each
may
reside in
it
using the
common
MUHAMMADAN JURISPRUDENCE
272
own skill,
who has
has
of
property
joint
and
pairing
is
bear
to
maintaining
the
the
to
it
expense
of
re-
extent
of
his
share.
of joint property
Enjoyment
all
by
its
owners being
if
practicable only
they agree among themselves,
law gives to each one of them, the right to ask
the
the
or
easements
(haqqu'l-marur
(haqqu'l-majra
water
rain
(Jj^xJ!)-
law.
lish
J|
;J)/
j^),
Jj^J)
j}*-);
and a right
to discharge
over
power
right of shufa'
3
pre-emption.
of
alienation
of
Holloway,
'
J.,
called the
1
Al-Majallah', p. 199; Hedaya
pp. 411-5.
2
Al-Majallah ', pp. 198-200.
'
the owner
'
and
'
Pathu'l-Qadfr
',
vol.
vi,
of shafa'
EIGHT OF PRE-EMPTION
273
than sales such as gifts, nor even to sales, which are right arise
not absolute and immediately operative and binding,
for instance, pre-emption does not exist in case of sales
with an option and invalid sales. It extends to hiba-bilevaz as it has all the attributes of a sale.
Some Maliki
3
would
extend
the
jurists
apparently
right to leases.
The
when
matter
said
resting
to
them
'
Fathu'l-Jalil
'
Hedaya
'
vol.
Al-Majallah',p. 153.
'
',
Hedaya', vol.
i,
p. 141
'
'
',
p. 291.
294; Fathu'l-Qarfb,
Pathu'1-Jald',
Hedaya ', vol. viii, p. 294
;
35
p. 374;
'
p. 291.
'
;
Al-Majalldh
',
p. 141.
Nailu'l-Ma'drib
',
MUHAMMADAN JURISPRUDENCE
274
Rules are laid down in order to regulate competition among the three classes of pre-emptors. The
to the
principle is that preference should be given
closeness
of
as
measured
the
claim
of
a
by
strength
connexion, hence, the co-sharer in the property itself
the easements conis preferred to the co-sharer in
nected with
and the
it
latter to the
there be
If
ing premises.
of the same category they have all an equal right
according to the Hanafis, but according to the Shafi'ls
and Hanbalis in whose view, the question could only
arise
of
right
each
is
in pro-
Exercise of the
right subject
to strict
conditions
'
its
nature
it
to
is liable
on.
JuJl^xJI <_~tts)
and follow
it
up by
in
ijs&\
Muhammad and
According to some
Zufur, a lapse of one
a sufficient bar.
If,
namely,
month would be
however, there
is
'Raddu'l-Mtihtar', vol.
Nailu'l-Ma'arib', vol.
'
in
i,
Fat^u'l-Qadlr', vol.
B.L.E. Supp.
v, p.
152
'
Fathu'l-Qadfr
',
vol. viii, p.
302
p. 141.
vol., p. 85.
viii,
remarks
BIGHT OP PEE-EMPTION
275
or
not be lost.
pay the price for
which the premises has been sold, to the buyer.
But
if he has
been induced to pay a higher price than
sold
perty
to
The
of pre-emption placing as
it
does an
on
the
free
of
owners
of
embargo
disposing power
some
Hanafi
have
property
jurists
suggested legal
devises by which it
might be evaded though the
employment of these devises is condemned as abomi8
Hanbalis3 and Shafi'is do not
nable, the Malikfs,
right
of
4
pre-emption, but the Hanbalis do not recognize such
a right in a non-Muslim against a Muslim. 4
The
among Muhammadans,
the
Muhammadan
law
pre-emption
is
attributes of
possession Possession
'
Nailu'l-Ma'arib', vol.
'Pathu'l-Jain*.
3
'
Nailu'l-Ma'arib
i,
p. 141.
i,
p. 142.
p. 295.
',
vol.
Ibid., p. 140.
J.,
in 6
Mad. H.C.
26, p. 31.
MUHAMMADAN JURISPRUDENCE
276
with
invested
is
with
many
ownership
as
What
is
himself.
as
(haqiqf ^JL*!*.)
the
of
against
possession
when
associated
attributes
all
except
man
owner
be
actual
may
It
the
grasps
in
thing
in
such cases
for
instance,
a space in his
it or locking
tute possession
door.
What is necessary to constithe intention to exclude other persons
me from
Hence,
it.
it
is
and turns
in
me
out of
is
my
in
occupation comes
in assertion of
it
that claim,
An
not
only
against
regarded as in possession
strangers but against the owner
is
himself.
Eights attached
Let us
the
law
consider the
attaches
to
nature
the
of
mere
the
fact
rights which
of
possession
aged
to
He
in possession (dhu'1-yad
ja!l.j) whose position is said
to be confirmed by outward circumstances (zahiru'1-hal
JlJl-JbUi).
POSSESSION
277
is
while that of
the owner
is
position
proportionately weakened.
According
to
hammadan law
the
modern
the owner
man
option to keep
it
Apparently even
in
pos-
by paying
if
the
man
its
in
possession does not assert a title but has made improvements the owner cannot have the land with the
for
them, and
if
they
quality
same protection
If
MUHAMMADAN JURISPRUDENCE
278
he would be held
liable.
is
person
said
to
be in
or a usurper
wrongful possession
(ghasib t^^lr)
if he takes or
a
keeps
thing without the permission
of the owner and with the intention of depriving
him
may
it,
he
Possession by
But if the man who is, in fact, in possession does
virtue of a
not no i<l it adversely but on behalf of the owner his
possession will be treated as of the owner himself. In
some
another's
it,
own
suance of his
it
as
right
or a pledgee. Here according to Muhammadan law,
the lessee or the pledgee and not the owner will be
held
at
in possession.
on a certain
possession,
right that the
so far
is
as
we have
lessee to present
his own
seen in
itself his
'
position
is
Durru'l-Mukhtir', vol.
that of a trustee.
v, p. 136,
POSSESSION
279
sion
is
may
said to be complete
Ownership
of usufruct
which
is
contract implies a
that of property.
owner
of
of
The powers
this class
of
are
alienation
of
an
rights
his right to their protection is also imperfect according
The rights and
to the Hanafis as already indicated.
CHAPTER
VII
ACQUISITION OF OWNERSHIP
SECTION
Modes
of
acquisition
inherent to his
right as
of
or extinguished.
'
Ownership, as stated in
either
by
ihraz
(1)
j}-*\
Al-Majallah
that
is
or
by
the owner;
The
succession.
last
mode
and
of
acquired
securing or
transfer
is
taking
owned by another,
',
(3)
(2)
naql
(JJu)
khalf (<_!*)
acquisition
or
or
belongs to
Such
common
by some
securing by means of which res nullius is converted into property depends upon the character of the
of
'
thing.
For
mountains are
cuts such a
cut by his servants or by employing
labourers he will be deemed to have done enough to
regarded
tree
as
or has
secure
it
it
as his property.
Similarly
game
is
secured
when
it
is
disabled from
ACQUISITION OP OWNEESHIP
Grass
Water
of its
281
is
as
is
it
^.)>
that
is,
its
supply.
land which
is
not
man
if
he revives
it
(yahi
-.,_)
result
to
has,
great
extent,
been
Though property
theory,
be
acquired
cannot, according
to the original
permits
'
36
MUHAMMADAN JUBISPEUDENCE
282
SECTION
Contracts
CONTRACT
II
tion of ownership
is
Muhammadan
means
aw
of
conjunction
namely,
proposal
(ijab
it
the
elements
(__>Ujjl)
of
disposition,
and acceptance
(qabiil
Jyi). Analysing
a contract in the language of the jurists will be found
to involve four causes (a'lal)
(1) faa'lia
(Llcli) or
:
that which appertains to the persons making the contract, (2) Mad'dia (&t)l) or that which appertains to
festation
and
the result
to
which appertains
or that
Ghayia
aimed at.1
(4)
(<uJlc)
to the
(3)
Suarfa
outward mani-
or that
which
relates
minds
declarations must
it,
but
gift
will
relate to the
make
offers to sell or to
of both
that the
fail.
a hiba or gift
is
'
Sharhi-Viqdya ',
vol.
ii,
pp. 4-5-
CONTEACT
283
is,
on
who
to
pay taxes
if
the sub-
and
in
the case
The question
in the
Muhammadau
is
treated
from the
question
But an
actually delivering possession of the thing.
exception to this is sometimes allowed as in a contract
In such a contract which is defined as
of suretyship.
MUHAMMADAN JUBISPEUDENCE
284
The
different view.
and some
waqf
is
be a mutwalli
Formation
of a contract
madan law
made
first
is
is
called
proposal
called acceptance.
The proposal and acmust
be
made
at
the
same
ceptance
meeting (mujlis),
either in fact or what the law considers as such.
declaration
is
of the horse to
is
isee
then
signifies his
cluded.
proposal, that
is
to
meant
is
that
when
man
has
is
It is not to
be supposed that
so
CONTEACT
285
understood in
The
is
the
fitness
of
its
act
is
the
(mahal)
subject-matter
subject-matter is not fit for the purpose, the contract
relating thereto will be void altogether.
In this connexion
it
is
if
that the basic idea of alienation according to Muhamrnadan jurists is the physical transfer of a thing by
This idea has been widened in
its owner to another.
some respects by
cies of a
out
the
Hence
law governing
entire
it
juristic
that
is,
transfer
contracts of
as
lease
of
property.
and hire
(ijara)
to
it is true, holds
good not only in respect
such property, but also debts and choses in action
this is so because, as the jurists point out, it has the
bequest,
of
sense of succession.
Moreover,
it
this
is
in
for instance,
there can be
is
of
no
existence
at
the time
of
the contract.
What
MUHAMMADAN JURISPRUDENCE
286
is
considered of
of
importance
or
fairness
in
with
connexion
unfairness
of
the
bargain is
the buyer,
but the state of his mind with reference to the subIn fact, consent without a knowledge
ject-matter.
question
not merely the abstract state of mind
of
the
'
'
is
him,
might have been known if he
had used ordinary diligence, but whether the buyer has
obtained what he really consented to buy. If, therefore,
he bought with all defects he will have no option. * As
regards the position of the vendor it is somewhat
different.
What he receives is consideration or value,
and every one is at liberty to place such value upon
his property as he chooses and the law cannot inor that the defect
unless
terfere,
it
in
is
a position
to
infer deception
The buyer,
the price
grossly inadequate.
on the other hand, consents to buy something specific ;
and that is why the Muhammadan law lays so much
stress on the question as to which of the two things
as
when
in
exchange
is
shall be
deemed
to be the price
and which
'
Al-MajalUh
',
p. 49.
CONTRACT
contract or
transfer
an inseparable
but
make
part
is
of
287
advantage
of
it.
gift
or
one of
to
if
made
an ordinary
instance,
transaction
will
L*
be
vitiated.
Similarly a gift or a
by an inter vivos
by
men
estate
or
The need
up of property was first felt in connexion
with mosques and charitable institutions, but the principle being once recognized it was necessarily extended
to other laudable objects.
The difficulty, according to
Muhammadan jurisprudence, was to obtain the power
to tie up property, once that was secured the only
limitation which is insisted on as regards the object of
such a disposition is that it must not be opposed
ficiaries of
as
is
valid,
such
MUHAMMADAN JURISPRUDENCE
288
thing with
the
vendor as
security
for
the
price.
Similarly any condition which it is customary to embody in a contract will be upheld, for instance, sale of
a garment with a condition by the vendor that he
will
mend
will
fix
Joint contracts
it
it
surplusage.
joint owners of
to
a
contract
on each side
a property similarly parties
may
Muhammadan
the
Hence each
a
without
on the contract
suit
of contracts
their principal
law
features
Alienation of property
to
(I)
sale, (2)
Alienation
of
usufruct
in
(1)
exchange for
which
includes
letting things
property, namely, ijara,
moveable and immoveable for hire, contracts for render2.
ing services,
CONTRACT
and professional
for
property,
(2)
for
and wadiyut
3.
services,
289
(a'riat)
(deposit).
Contracts,
(1)
obligation, namely,
by the
imposed
parties,
made dependent on
a contingency
or
referred to
such as marriage, sale, gift, and generally speaking also waqf, and some which may, such
as lease, suretyship, bequest and the like.
A dependent right or a right in personam, whether Dependent
cannot
arising under a contract or by the violation of a right rights
be transferred
cannot, according to the general rule, be a subjectmatter of transfer.
The reason is that, in the first
case, it has its origin in the express consent of the
person of incidence and in the second case by implication of law.
It can be dealt with, however, by the
future
date,
promisor's consent.
Such a transfer
which corresponds
()))
this transaction
may
him from
to
owing
to novation.
is
called
hawalat
The nature
of
Hawalat
C.
dues from
due from B.
Negotiable
misso
pr
of exchange (suftaja a^IA*,) would, therefore, accord^.
11
notes and
bills
of
exchange
ing to the ordinary rule, be invalid. But if a custom
of negotiability of such notes or bills is found to
exist
in
particular
country,
so
that
the
bill
debtor
it
of
matter of
custom.
may
the
MUHAMMADAN JURISPRUDENCE
290
sale
(bai
defined
is
j__w)
law
the
an
as
this is not
life
of
exchange
But
similar property. 1
for
always possi-
with
ble,
as a substitute
party to
thereof guaranteeing
to
compel each
Upon
made
Different kinds
is
when
barter
price,
determinate article
article,
and
(4)
(muqa'fda
is
sold
(3)
salam
bai'
(1)
a determinate
(2)
(Ju),
that
^'JLo), that
for
is,
is,
another determinate
sale
of
for
price
determinate thing.
1
'
'Inayah',
vol. vi, p.
'Hedaya',
vol. vi, p.
Kifa'ya
vol. v, p. 455.
65.
78;
when
'Fathu'1-Qadf
',
vol. vi, p. 65
SALE
To determine which
sold (mabfa'
(thaman
Muharumadan
diffi-
why
importance
is
is
and which
is
...xsj)
the
culty in
sold
-JkX<)
291
is
The
and
fish in a
tank
2
not allowed.
is
For
be upheld.
of a
cow
passage for
cannot be sold
if
flow
of
or
of
is the principle en
certainty.
in the nature of gambling which
This
Munabadha,
etc.,
and
days,
in fact all
which transactions
were prevalent in
such
'
'
Kifa'ya
Hedaya
',
',
Sec ante,
258-9.
p.
11.
as
Muzabana,
wagering or aleatory
to
water 3
discharge
the channel cannot be defined with
the
sale of
instance,
not valid.
is
MUHAMMADAN JURISPBUDENCE
292
s.ii.un
is
called salam.
The goods so paid for in
advance need not, as I have said, be in existence at
the time of the contract, but the law will be satisfied
if
they are delivered on the date fixed. In this
form of contract the price must be paid at the time
action
being
described
definitely
as
to
quantity,
quality
and
this
form
of
this
way
The
holds otherwise.
law
interpretation on the
and
he
would
the Hanafis
regarding
allow such
salam
wider
than
a contract
the
delivery
must be
contract
fixed.
must
According
fulfil
to
seven conditions.
a
of
gated
by
rain-water
or
canal,
the quality,
whether
if
the article
pense of carnage.
but the
in the
cancelling the
subject-matter is allowed.
option
of
defect
article
bought
sale for
The
SALE
under
cannot be disposed of
been delivered to
the
by
293
before
purchaser
it
has
him.
Istisna' is
or the
of
is
price
this
kind
further
still
consists
in
relaxed.
ordering
an
strict Istisna'
of the article
transaction
artisan
or
manufacturer
a
and delivery
given
to
a
to
in
nature of
The
hand, the
man who
to refuse to accept
it
When
an
article
which
is
of the
species of
price,
an article of the
is,
gold
same kind, the law requires that there must be mutual
delivery and that each of the articles subject of the
transaction must be equal in weight to the other.
In
this connexion, it makes no difference whether gold
or silver is sold in the shape of coins or ornaments
or
that
or
otherwise.
because
When
that
gold
only insists
that there
is
silver
is
sold
for
are
treated
always
the very
nature
of
They
as
price,
these
metals.
law not
is
upon
must
These
strict conditions as to
sale of gold and silver are the effect of the applicaBut the doctrine
tion of the doctrine of Kiba (';)
is
silver.
Surf
MUHAMMADAN JURISPRUDENCE
294
Riba
Riba
means
translated as
on
be
tended to
and
in
its
applied to
principle
Muhammadan
amount
amount
be
to
certain transactions of
sale
law
being
repaid
in
exchange
of
the
As the law regarding riba is of conimportance and lies at the root of many of
lent.
siderable
which
the restrictions
in
is
Muhammadan
understand
the
for
authority
from the
law,
hamper freedom
it
is
of
contracts
necessary that
we must
The real
Prophet in
words.
reported
'
gold for
wheat for wheat, barley
and salt for salt of the
(Sell)
same kind
seems to
is
conflict
to
reported
died without
God has
The Sunnfs
forbidden riba.
generally have,
the circumstances of
the people of
different
the
time
and
the
countries should
practice
of
be given the
greatest weight.
Let us now see
sold
by
himself,
in
SALE
295
other words
The
on.
absolute
Shafi'is
hold
sold
The
mode
to
which
the
of sale.
mode
from
market
is
to
determine, whether a
madan and
is
view,
tion is
The
non-Muhammadan
in
opposed by Abii Yusuf and Shafi'f. The excepbased on a tradition reported from the Prophet. 1
rules relating to riba
could not
fail
in its
apcause considerable hardships and inconveniences to the people. The lawyers, therefore, set to
plication
to
>
'
HecUya
',
MUHAMMADAN JURISPRUDENCE
296
means by which
devise
of
expedients
books, the best
Bai'u'1-wafa
is
to
character
this
known
of
Bai'u'1-wafa
Several
in
the
(*'j^S! J-JLJ).
immediate
origin
is
into
'
footing as absolute necessity (i.e. in justifying relaxation of the rigour of law) '.
This transaction is
1
as
valid
regarded
though perhaps improper.
Bai'u'1-wafa
vendor
is
returns
purchase-money
the
when
the
buyer will
On
the conclusion
of
a valid
contract of sale
the
ever,
'
cannot demand delivery of the property and the property remains subject to a lien for unpaid purchasemoney. If, however, the sale was on credit the vendor
would have no lien.
All expenses incidental to the delivery of the thing
sold are to be paid by the vendor and those incidental
to the payment of the consideration by the buyer.
Bee
'
Al-Mjallih
',
p. 58.
GIFT
The
cost
297
and
of
of registration
accrued
the property
to
after
contract of sale
be revoked (faskh
*.^j) Eevocation of
sales
number
lor a
is liable to
option
when
is,
to the bargain
of
defect
U^ill
.Lxi.)
yuil
or
jU.)
by
common
consent
(iqa'la *!UI).
defines hiba
(jua>)
or a simple Gift
As already
this
'
Al-Majallah
See
See
'
',
p. 42.
Ashbdbwa'n-Na4air
'
Fathu'l-Jalfl
',
pp.
',
p. 525.
There
395-6.
is
a version of Maliki's
but
opinion to the contrary as reported in Hedaya ', vol. vii, p. 480
the generality of Maliki lawyers take the same view as the other Sunnf
'
Schools.
38
MUHAMMADAN JUEISPEUDENCE
his death
it
even
entirely
if
of
so
that
delivery
possession is
possession,
need not
there
afterwards
in
given
pursuance thereof,
of
are not
gift
treated
as
ineffective
before
be a renewal of the
Gift of
Musha'
gift.
Musha'
vitiated.
(cli*-o)
which
literally
means con-
is
But
until partition in every particle of the property.
as the words of gift are not altogether ineffective
subsequent delivery of separate possession after partihas been effected will be held sufficient to make
the gift complete. 9 For the same reason, in the opinion
tion
Judicial
should
be
within
confined
the
strictest
rules.*
It
may
exceptions to the
1
HedAya ', vol. vii,
BtW, 15 Gal., 684 (P.O.).
of
delivery
481
p.
For
seisin.
general
instance,
v.
if
rule
the
Hotseini
Ibid.
'
Hed&ya
',
vol. vii, p.
488
'
;
Al-Waj{z
',
vol.
i,
p. 249.
'
Hediya
',
GIFT
299
But
needed. 1
makes a gift of it
no formal change
to
of
if
will
first
before
making the
gift-
is
given and
should be
the
*>
a piece
'
says
of
cloth
have taken
and
possession
will
who
the donee
be
of
it
sufficient
is
present
according to
to satisfy the
',
gift-
gift
so
that,
gift
of oil
in
the sesame or of
must
It
also
v
1
'
Hediya
',
'
Bahror-Raiq
'.
493
see also 23
vol. vii, p.
p. 318.
311;
Bom., 682.
Durru'l-Mukhtir and Supp. to
'
'
MUHAMMADAN JURISPRUDENCE
300
really a
Shafi'i
The
release.
Muhamrnadan
law.
sold, that is
The Courts
in
according
this country
Scope of
gift
therefore, the
give you this thing for thy life the Hanafi, the Shafi'i
and the Hanbali jurists would regard it as a gift of
On the other hand, if the words
the fee simple.
of gift relate only to the usufruct of a thing, the law
would prima facie treat them as having the effect of
a loan as
for
thee
when
a donor says
as a gift
by way
'
this
house of mine
residence
of
or
for
is
thy
the donor
thing for
reserve the
may
himself for
life
usufruct or use of a
or for a limited
make
a gift of
it.
period of
The
latter
'
'
3
'
'
Baddu'l-MuhUr
',
Al-Majallah
',
',
pp. 396-400.
p. 135.
p. 1112.
GIFT
the donor lives or give
pay
off his
would both be
a case,
Again a
him something
The
debts.
301
in
exchange or
and the condition, in such
gift
valid.
senti,
tional.
'
'
if
(&.>.)
gift,
a condition
is
it
void,
gift with
while in the former case the gift itself
would be valid in the latter case and the
;
'
conditional.
gift
who can
individual
It
may be
sadaqa
(juj^c).
differs
from a waqf in
a gift
is
a sadaqa
made
to
Muhammadan
law. 1
the donee,
who however
until
such revocation
may
The
right
it.
The
36Cal., 431.
position
MUHAMMADAN JDEISPRUDENCE
302
of
consistent but
of
This tradition
gift.
merely of making such
effect
their
children,
When
(2)
the gift
made during
is
coverture
to the
or
that a
different
substance,
name
.would be applied
for example,
when wheat
to
the
new
turned into
is
flour;
If
(4)
When
(5)
of the
donee
(6) If either
behalf has
explicit
the
and confirmed
by the order of a Judge, because, the law on the question being one on which jurists have held different
opinions, the declaration of it by a Qadi is necessary
to remove the doubt.
But if none of the conditions
made
as a matter of course.
The
the
order
will be
and Hanbalis
Shafi'is
'
llcdaya
',
491-506
'
;
Al-Majalldb
',
pp., 186-7.
WAQF
when the donee
is
303
'
and according
to
bi
Sharti'l-'iwad
of
an exchange.
to
B.
condition that
of gift
Such
and sale.
It is
will not
tion, so that it
can
party
return
3
has received.
defect
for
Hiba
the
which
must be
he
article
Sharti'l-'iwad
bi
dis-
change which
(ue>jx>[)
For
&).
is
instance,
makes
bi'l-'iwad
gift
of
would
of the
be to prevent the revocation
gift
otherwise the transaction has all the incidents of a
;
simple Gift.
According to
Muhammadan
of
'
',
vol.
ii,
'Fatiwa
where a
'
Alamgiri
',
p. 345.
ii,
p. 10.
550
from hiba'
vol. iv, p.
sale is distinguished
its
et seq.
bi'l-'iwad.
MUHAMMADAN JURISPRUDENCE
304
to
opposed
strongly
it,
but
the
settlements
for
felt
necessity which
of property for
was
the
permanent
for
and
other
charitable
and
poor
objects pious
useful, at
last triumphed over his opposition.
Those who supported it could point to mosques, and inns for travellers
as examples of property which had been from time
immemorial recognized as inalienable. Those jurists,
however, who did not like to treat waqf as an exception
to the general principles of Muhammadan law applicable
.
to
held
property
that
in
subject of
waqf
Him
as
He
But
as
property
revested in
created things.
passes
is
objects of
the
of
ownership
to
owner
originally the
God
of
all
The
fact
is
human
beings.
higher degree.
Muhammadan
The
must
which
object
not
be
is
to
opposed
policy of
Islim,
building
of
ment
offences
so
as
churches
to
the
involve
general
sin,
and temples,
religious
such as
the
the
of
This
is
the view of
Fathu'l-Qadfr
',
Bee
'
Hediya
'
and
WAQF
305
devoted
of cypres of the
fail
the grantor
existence.
of
Omar
in suc-
may
in
i In 18
Mad., 201, and 31 All., 136, questions arose as to what uses
would be superstitious according to the Suunf law.
39
of
MUHAMMADAN JURISPRUDENCE
306
intended
relieve
to
instance, a
rest-houses
for
the relief of
ficiaries
class
of
may
etc.,
travellers,
or of soldiers
The bene-
would be good.
also be
individuals or a limited
1
men, such as the children or descendants
which case it makes no difference whether
of A, in
for
donor's family they are rich or
poor, because so far as the gift to
them by way of waqf is concerned, the law treats it
The difto that extent as a hiba' or simple gift.
Waqf
hiba'
think
extinct
some
that
to
if
become
they are
wrong
in
their
concerned,
waqf according
to
them
as repeatedly
1
It is doubtful whether according to the Judicial Committee of the
Privy Council the descendants of an individual would be regarded as
a limited class, see 22 Cal., 619.
WAQF
307
or in
favour of a suc-
the waqf. 3
But, though the law is practically unfettered with Property which
be dealt
respect to the objects of such a grant, the accepted may
:
...
,,
of
mal
or tangible
so that waqf of a
as a rent charge
with by waqf
property,
mere
not allowed.
In the next place
be productive or capable of being used without the substance being consumed. This rule excludes
it
is
must
may
it
is in
See
Such
as
14
All.,
375.
arc
taken out
MUHAMMADAN JURISPRUDENCE
308
application of
Privy Council.
ernment
Muhammadan
and
securities
established,
it
may
the
letter
as
which
made
be validly
Creation of a
"waqf
The
mosque
it
be a dedication in
or a similar institution
may
an undivided share
of
in a property. 1
does not require the use of
creation of a
waqf
any particular words, but the intention to
the
settle
property in
necessary.
FatawA 'AlamgM ',
Wajfz ', vol. i, p. 244 and
'
':PatawA 'Alamgirf
All., 321, p.
323.
',
vol.
'
ii,
p.
466
Hedaya
',
vol. v, p.
425
'
;
Al-
pp. 377-8.
Fat^u'l-Jalfl ',
vol. ii, p. 455.
Of. 31
Bom., 250,
p.
257
16
WAQF
A waqf
like
309
gift
all
conditions of a testamentary
gift,
that
to
is
say, the testator can revoke it before his death and the
disposition will have effect only out of one-third of the
estate.
In the
may
he considers
But once he has appointed a mutawalli the
proper.
donor cannot interfere in the management unless
he has reserved to himself such power in particular
matters. In default of appointment of a trustee by the
donor the Court shall appoint a proper person, and the
maxim of the Muhammadan law as of the English
law is that no trust shall fail for want of a trustee.
In all questions relating to the office of mutawalli the
'of
management
as
and
it
a
a
dishonest mutawalli
supervision
may
are
that
the
'
i
Raddu'l-Muhtdr', vol.
Efrjum, 25 All. 236, p. 252.
*Shahar Banoo
(P. C.)
3
v.
iii,
Ago,
p.
395
directions
Mahomed
should be
the
of
v.
donor
Anjuman Ara
Bindaneem, 34
Cal.,
118
MUHAMMADAN JURISPRUDENCE
310
all
that
be necessary
may
As
itself,
some well-established
violate
policy of the
law,
general
rule
Muhammadans
is
all
a place for
classes
of
down
Bequest
of
a condition that
bequest (wasiyat
fer to
The
come
testator
or devisee
cutor
is
is
<L*c.)
into operation
called
is
or will
Musi
called Miisalahu
called
Wasf
is
defined as a trans-
after the
(,<cj)-
(.ycy*)
testator's
death.
(^ ^y*) an ^
The executor
is
*^ e exe ~
the suc-
not part with his rights until after his death, when such
rights have substantially ceased. In fact if a transfer
is made by the owner of a property to take effect from a
future date, hut while his ownership in the thing is still
subsisting, it would be void, such as, a contingent gift or
A fortiori, therefore, a transfer which is referred
sale.
to
a period
1
after
See Ata-ullah
Gal., 448,
and 35
v.
Gal., 294.
All.,
494,
also
7 All.,
461, 18
BEQUEST
311
by
ahort-comings during this life in
good and pious works. Further a man's rights in his
property are not altogether lost on his death but
subsist even thereafter to the extent of his needs at
that time, such as his burial and the
payment of his
make up
debts.
for
his
is
based on texts
The law
would amount
is
not
to giving
allowed
to
is
some
that
heirs
preference
over others thus defeating the policy of the law which
has fixed the portion of each in the inheritance and
bringing
another.
about
disputes
If the other
among men
related
to
one
consent to a bequest to
one of them or to a bequest of more than of one-third
of the estate, the above reasons no longer hold
good
and the bequest as made will be valid. The same would
be the result if there be no heirs. Consent of the heirs,
however, must be given after their rights have become
heirs
26 Bom., 497.
it
MUHAMMADAN JURISPRUDENCE
312
way of such disposition by reason of the existence of their rights, while it is treated by the Shafi'is
as transfer by the heirs of their property, because such
in the
Acceptance by
the legatee
if the
legacy be not rejected by
the legatee. Proceeding upon juristic equity the law
allows one exception, to the principle that a bequest
confers a new right on the legatee, namely, that if be-
a sufficient acceptance
ence
is
testator
death,
Shafi'f's
and also in
opinion
the
view of Zufar
bequest
just
being purely in the
nature of succession to the rights and interests of the
like
is
inheritance,
deceased.
A bequest
speaks from
death
It is of the
Scope of a
bequest
bequest
individual
may
living
be
at
'
made
in
the time
See
vol. v,
favour of
of
p. 463.
a specified
making the will
BEQUEST
313
and
valid.
to
if
no benefit under
it,
if
him
he was born at
provided
him
as a
member
the time of
the
of a class
testator's
As the object
of a will
is
the
of
testator,
property,
whether
to belong
'
'
Dnrrn'l-Mukhtir and
40
'
Kaddu'l-MuhWr
',
MUHAMMADAN JURISPRUDENCE
314
death
his
another
have
should
person
the
cor pus
ence at
For
in-
will be held to be
terms
and
after
the death of A
good
and B the house or the slave will lapse to the estate. 1
That is
Thus, annuities may be created by a will.
to say, a testator may direct that out of the property
so much a month should be given to A and so much
to B or to one in succession to the other.
A bequest of the use of a thing can also be made in
favour of a pious object such as a bequest of the use
of a horse in religious wars, in which case it would be
treated as a testamentary waqf and would be subject
of
right
enjoyment
according to
to the
tions.
same
the devise
its
restrictions
The author
of
Durru'l-Mukhtar
',
however,
to have
'
Hedaya
',
409-11
'
Patiwi 'Alamgfrf
',
vol. vi, p.
188
ct seq.
and
'
BEQUEST
The person appointed
testator
is
315
Executor
funeral expenses, the debts and the legacies and to administer the estate generally.
He is empowered to
and
collect debts
office of
other
As the
to
it
made without
cannot be
When
person.
can neither resign
it nor
be removed by the Court
without sufficient cause, for he is the person in whom
The executor may
the testator reposed his confidence.
If
more than one
his
to
office
another.
bequeath
Kadir
is
bequest
Dorab Ali
to
be favoured.
1
In Suleiman
suggested that a
should
be
from
the mere expresbequest
distinguished
v.
Khan,
it
is
however, one
man
by
will
directs
should
when
of
his
SCal.l, p.
6.
MDHAMMADAN JURISPRUDENCE
316
Some bequests
be
revoked
either
or by
declaration
may
by express
conduct, such as a bequest of a specific thing to a
legatee may be revoked in so many words by a subseof the testator in the thing bequeathed.
and
services
of
men
means
letting
and
hiring.
is
Ijara
are classed
(s.U.1)
which
ascertained usufruct in exchange for some ascertained thing. 3 It includes leases, contracts of bailment
of
and
is
Use of the
property by
the lessee or
hirer
for
personal
and professional
when
said to be ascertained
Usufruct
services.
3
enjoyment of the thing by the hirer is fixed.
As to the mode and extent of user or enjoyment of
the thing subject of ijara, if the matter is denned
by the
make
not more.
for his
is
it
entitled
or
less
to
but
business
may
use
it
for
that
purpose or for
difference
who
ence
'
uses
it,
Durru'l-Mukhtar
1
"Al-Majallah
3
Ibid., p. 66.
restriction
any
'
and
p. 60.
'
would be
Kaddu'l-Mufctar
',
ineffective
vol. v, p. 462.
own
it
to
contract
of
constituted
is
ijara
317
by proposal and
A contract of
ara 'k
operation constituted
acceptance like a sale. But unlike a
may be referred to a future date and may be made
A contract of this kind even, after it has
conditional.
iJ
sale its
The
and
is,
2
sight.
should be specified
otherwise
is
that
the
period
will be held to be
it
services to be
or the
hire
in the contract.
The property
subject of ijara
held
fault.
liable if
it
is
who
destroyed or
is
will
not
therefore be
damaged without
his
may
damage
lease.
In
such
the
lessee. 4
When
and the
like.
Though
Muslim can
sell
his
for
sometimes
another,
by
'
in
express
of
Ibid., pp.;74-5.
Ibid., p. 87.
* Ibid.,
p. 77.
trust
(amanat Trust
contract
MDHAMMADAN JURISPRUDENCE
318
of a contract
it
trust
called
is
a trustee or
amin
(.^-)).
a trust perishes in the hands of the trustee,
responsibility but not by reason of anything done by him and without his fault he will not be liable, but in the case of a
Trustee's
When
bailment for hire the bailee must show that the loss or
damage could not have been avoided by reasonable care.
The owner
to him.
Deposit
When
is
of the depositee.
Such a contract
at the option of either party.
Coramodate
loan
Pledge
or
'Arfyat (>Ac)
can be terminated
commodate loan
is
denned as the
giving by a person of a thing to another person without receiving anything in exchange intending that the
latter should enjoy the usufruct.
may
^b.)
is
It
is
merely
a security.
the
subject
a pledge,
of
but
'
Hediya',
PLEDGE
satisfaction
of
debt
cannot be
The
enforced.
view
the
for
property
319
holding
a contract to
sell.
The pledgee
entitled to
is
pledgee's
is
nature
the
have
to
have possession
satisfied.
recourse
Though
of
to
of
this right
detention, the
the pledge for
entitled
to the use
or
The reason
is
that an
ordinary pledge
is
merely a
security.
pledger
than the
entitled to
difference
The same
of
and
the
it
debt
the
debtor,
If the debt is not paid the 'mortgagee can ask the Remedies of
Court to have the pledge sold and the debt satisfied the pledgee
He cannot sell it himself
out of the sale-proceeds.
unless he has been expressly authorized in that behalf
by the debtor. The debtor might also authorize a
third person to sell the mortgaged property for non-
payment
of the debt.
'
Hediya ',
'Al-Majallah
',
p. 115.
MUHAMMADAN JURISPRUDENCE
320
be revoked. 1
nize
foreclosure
recog-
unless
perhaps in a transaction of
the nature of baiu'1-wafa which, however, in theory
partakes more of the nature of sale than of security.
demand any
other
security, so that
of the debt.
may
it
The
pledger's
proprietary interest in the pledge
to
the
being subject
rights of the pledgee, the former's
of
with
the property is restricted to
power
dealing
that extent.
sell
the prop-
Suretyship
demand
for something.
The
contract
the discharge
may be
of
delivery of property
It
may be
and the
like.
on a
future date.
It is of the very nature of a contract of suretyship
the creditor or obligee can call upon either the
that
demand from
fulfilled.
the other
So that
if
or
'
Al-Majallih', p. 116.
Ibid., p. 90.
AGENCY
the debtor
321
is
entitled to time.
That
if the surety is discharged or a conin his i'avour, the liability of the original
to say,
is
cession
is
made
Agency (<2l=.
Vakalat)
consists
in
the
delegating Agency
by a person of his business to another and in substituting him in his own place. The latter is called the
muwakkil or
constituted by proposal and accept-
It is
principal.
is
called
It
is
the
that
and purchase, letting and hiring, borrowing, advancing money on pledge, bailments, making gifts,
composition, release, admission, litigation, demanding
sale
payment of debts,
partition,
and
like
and also for enterthe
of
property
possession
the law does not
But
of
a
contract
into
marriage.
ing
right
of
pre-emption,
^j^j^or
on behalf benefit
party so far as the enforcement of rights and liabilities under the contract, is
concerned. In other cases the right of enforcement
will accrue both to the principal and the agent.
to
be
An
the
contracting
on behalf
41
A1-Majall<&h
',
p. 235.
MUHAMMADAN JURISPRUDENCE
322
but
not
He
however, admit a
from
so doing by
prohibited
his principal.
He is not ordinarily an agent for the
purpose of taking possession of the property which is
claim
if
otherwise.
he has
cannot,
been
Agent's duty
towards his
principal
to
must observe
down by
the
all
is
He
to do
directions of his
conditions and
The agent
the principal.
commission
the
his best
bound.
He
restrictions
laid
will not be
in
performing his
the benefit
for
of
the
allowed to
buy for
himself the property which he has been commissioned
principal.
to
sell
is
not,
An
or to buy.
therefore,
Termination of
agency
The
the
business
being accomplished.
But
the rights
if
have intervened
for instance, if a debtor
his
and
at
the time of the contract
pledged
property
or before the expiry of the time for payment of the
debt, appointed an agent to sell the pledge, he cannot
afterwards dismiss him without the consent of the
pledgee nor will the agency in such a case lapse on
the death of the principal, nor can the agent having
once accepted the agency divest himself of it. Even
after discharge an agent retains his authority to bind
of
others
Partnership
parties
is
are
notified. 1
Two or more persons may combine to carry on business on condition that the capital and the profits will
be shared
among them.
l
'
Such a combination
Al-Majallah
',
p. 248.
is
called
PARTNERSHIP
partnership in contract
as distinguished
from
323
jJL!l
(shirkatu'I-'aqd
4^>_i)
the essence of a
of
is
that each
would be regarded as
or vitiated.
fasid
the
income
and
so
on,
second
is
called
(.LaiLcJI
shirkatu'l-'anan
which
in
The
first
i=>J*) and
the
not stipulated
for.
In
(^U*!! *^>-J>).
partnership on a basis of absolute equality each partner is a surety of the other, and an act or admission
the
is
partnership.
skill
Having regard
may
to the
be of three kinds:
common
(I)
stock a partnership
in capital (shirkatu'l-amwal
among themselves;
JuwJl
=>-), that
is,
labour
and
for
skill,
(2) in
labour (shirkatu'l-'amal
is joint
tailor
MUHAMMADAN JUBISPRUDENCE
824
in
partnership
and
s-yl i=y!)
where
two
or
more
is,
persons having no capital
to
and
sell
on
and to divide the
credit
buy
agree
In a partnership in labour one partner or both
profits.
may contribute the shop or the implements with
which the business is to be carried on.
If one person contributes the entire capital and the
other skill and labour it is called a partnership of mothat
dariba (j.La-c)
them
if
in
if
such
owner
a case the
it
the
of
other party
the
capital
is
to take
at
all
^p)-
tributes
land
is
his
skill
and labour in
called muzara'at
(ic.L).
Powers and
liability of
partners
As regards the
powers
of
the
partners
each
is
tal
to
the
contrary
notwithstanding.
In
PABTNERSHIP
modariba the
loss will
325
and the
liability will
A partnership
pleasure provided he gives notice to the others.
is
also
law
dissolved by the operation of
partnership
on the happening of certain events such as the death
of a partner, or his becoming a lunatic.
But in the
latter case the partnership will continue as between
the other parties supposing there were two or more
partners besides the one who has turned lunatic.
CHAPTER VIII
FAMILY LAW
Conception of
THE
madans
law of the
is
Muham-
l=u) or mar-
It
children
is
is
established
of
of the
Muhammadan
MAEBIAGE
of a family
legal conception
327
with a view
jurists, therefore,
of
law considers
other.
cal
spoken
of as
of the
he
is
some
would
treat the
dower payable
and
to the
'
Taucjih', p. 71,
and
ante, p. 95.
MUHAMMADAN JURISPRUDENCE
328
to
man
to be
conditions
mulgation of Islam.
It also
follows from the above theory regarding
that
the husband has a right to dissolve
marriage
the marriage as by such dissolution he only gives up
his own right.
But as marriage is founded on contract
and the above rights of the husband arise by implication
of such contract, it is open to a woman at the time of
marriage or subsequently thereto to stipulate for their
curtailment or to get some of them transferred to
herself, such as the right to dissolve the marriage.
It is of the nature of the contract of marriage that
it cannot be made contingent on a future event.
Nor
can marriage be expressly limited for a time.
The
reason is that, if marriage were allowed for a limited
period of time,
tial
How marriage
is
contracted
it
would
fail
to fulfil
most
of its essen-
purposes.
and
be
MAEEIAGE
329
to the
According
is
required
certain
person belonging
to
how high
ascendant
fosterage
induces
the
are followers of
is
only
partial.
polytheistic woman
marry a Christian
but
woman
Muhammadan man
or
can
Jewess, though a
Christian or a Jew cannot marry a Muslim woman.
This distinction is drawn between the case of a
Muslim man and a Muslim woman because if a Muslim
woman were allowed to marry a Christian or a 'Jew,
there would be a likelihood of her being converted to the
faith of her husband, while there could be little
appre-
42
MDHAMMADAN JUBISPEUDENCE
330
who
who
Void and
vitiated
marriages
is
observing 'iddat is forbidden to marry until
such period of probation has come to an end.
Marriage between persons who are permanently
prohibited from intermarrying is batil or void, such
as with a man's own sister, niece or the like and
marriage between
marry
a
is
persons
whose
disability
to
inter-
for a
woman
'
when
the fact
is
was never
would flow
it
it
may
be
brought to
the
husband, he will
to
enter into a
marriage
contract
dower
will
if
have
is,
competent
in
girl
to
marriage
who
has
had sexual
intercourse), is
'.'vol. ii, p.
380.
MAEEIAGE
331
Malikis
if
she has
attained
two
these
with the
the test
is
difference
is
to the father
is
among
of
marriage
father in
minor. 3
The
monial
1
See
et seq.
'
would
Malikis
'
Sharau'l-Viqdyah
Al-Wajfz
',
'Hediya', vol.
Ibid., vol.
iii,
vol.
iii,
p.
ii,
the
to
guardianship
p. 173.
175.
'
right
father,
ii,
p. 21,
and Hedaya',
Fatj>u'l-Jall
',
of
whose
'
vol.
',
p.
the
confine
p. 8.
matriright
is
MUHAMMADAN JOBISPBUDENCE
332
base
it
on what
law. 1
In the absence
father
among
the
Shafi'is
to a
person
according to
jurists
she
who
is
some
jurists
have
will
it
and according
the option
to
will
be invalid
to other Shafi'f
get
rid
of
the
There is a difference
marriage on attaining majority.
of opinion among the Hanaffs as to the circumstances
under which a marriage contracted by the father can
be set aside. The accepted view seems to be that if
man
to
majority to object
with a man who
'
is
Hedaya
',
1
vol. ii,
'Al-Wajlz
See Hed&ya ', vol.
'
iii,
pp.
194-5.
MABEIAGE
333
nizes this
power of intervention in
family from social disgrace.
(6)
The
education.
with respect
He
necessities
refuse to
The
suspended
if
he does not
and
to
by marriage, except as
The husband's
wife
at
sum
husband as
out of
is
lawfully stipulated in so
many
words, as
means
may
is
of
the
also be
often done
MUHAMMADAN JUEISPEUDENCB
334
that
the husband marries another woman the latbe divorced at the instant of such
marriage.
The wife may also, as
already mentioned, stipulate
for power to dissolve the
marriage.
The wife has a right
corresponding to that of the
husband to demand the fulfilment of his marital
duties towards her. 1
She is also entitled to be provided with proper accommodation
separate from the
if
ter will
both.
If
Dower
Mahr
either a
(^)
sum
or
of
dower
money
as
it
is
or other
usually translated
is
form of property to
entitled by marriage.
It is
not a consideration
proceeding from the husband for
the contract of
marriage, but it is an obligation imthe
law
on the husband as a mark of reposed by
for
the
wife as is evident from the fact that
spect
the non-specification of dower at the time of
marriage
JUI^),
which
is
customarily fixed
for
the
females
of
her
family.
'
"Hediya
Baillie's
ii,
p. 20.
vol.
iii,
p.
204;
'
Digest
',
part
i,
p.
91,
-Kittya',
vol.
Hi,
p.
204;
and
MARRIAGE
335
called muta't
to
(J^),
that
is,
immediately
is,
deferred-
entitled
is
to
demand
so
much
of
making a declaration
is
called
taliq
(jlls),
which
is
words
possessed of understanding.
Talaq or divorce is strongly
condemned by the
should not be resorted
has become impossible for the parties to
Muhammadan
to unless
live
it
religion
and
it
is
pronounced
be no good cause
upheld as
for
it.
It
is
but once
it
is
valid,
MUHAMMADAN JURISPRUDENCE
336
of
all
1
the
to
law.
of
authority
particular
right
is
But
if
to
lead
likely
the
to
law would guard against such a contingency by imposing conditions and limitations. 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.
abuses
the
Talaq or repudiation
is
of
two kinds,
raja'i
(.-*-)
or that which permits of the husband resuming conjugal relations and bay an (.J'j) or that which separates.
is
revocable
irrevocable
in
the
the
if
'iddat
of
The next
best form
(.*-)
is
But
action.
the wife
is-
if
'
of three sentences at
pronouncement
1
'
Fathu'l-Qadfr', vol.
iii,
p. 326.
MAEEIAGE
337
'
I have divorced
time, the husband saying three times
thee or saying at one and the same time
I have
'
'
divorced thee
thrice
the
',
result will
be
irrevocable
Even
after
was
Prophet
to discourage
is
such divorces.
tion,
however,
jest holds
still
further
'Hediya
43
',
vol.
iii,
p.
344
MUHAMMADAN JURISPRUDENCE
338
Ha,
Ziliar
is
called Ila
Zihar
(*Lj)-
( .IJj )
make
to
liable
atonement
(kaffarat
for
U<=-,)
his
improper behaviour.
The husband,
Dissolution
of marriage
by the wife
wife the
power
the
dissolving
have
as
of
pronouncing
marriage.
he
may
said,
talaq,
Once
he
confer
and
has
on the
thereby
conferred
revoke it and
whether
to exercise
depend upon
the power or not.
Such conferment of power is called
such
it
power,
tafwid
in
afterwards
cannot
the
will
(j^ajjiJ
or delegation.
three forms:
'
bil
business
is
al'ikhtiar
(1)
'
choose
saying
al'am'ru
wife
thyself
or
The
(
'
delegation
may
be
the husband
Ajui.21),
divorce thyself ', (2)
hands
',
and
(3)
al'mashi'at (Ju^oJl),
that
Pronounce-
ment
of
divorce
it
is,
is
called khula'
mutual
(f-L=-)
or
mubardt (LiAbu.),
release.
may be
construed
MARRIAGE
339
can arise
as
to
allusive
In cases of the
require construction.
latter class the husband is entitled to say whether he
expressions
meant divorce
down
for
by the Separation
Apart
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
If
separation.
talaq.
the
imputable to
fas'kh
or
iJ)
decree
annulment
of marriage.
The
difference
For
instance,
if
This procedure
is
called
Lian
(^Ul).
If
the husband
is
at the
band
sues for
ground
of
annulment
serious
of
the
malformation
So
also
if
in
the
the hus-
on
the
wife,
the
marriage
MUHAMMADAN JUBISPRUDENCE
340
should be
it
pointed out
their
in fairness
anxiety
to
avoid
to
the
evil
of
the
pre-Islamic
being adopted
much
as
it is
ment
the
decree
classes
of
leaving
many
of
the
that a similar
incidents
of
effect
marriage
to
of
be
PATERNITY
341
by them
Even on
time
called
the
period
of
probation or 'iddat
(tte.)
marry again.
One important
is
that
it
settles
the
MDHAMMADAN JURISPRUDENCE
342
a slave.
of
and
support
Muhammadan
its
maintenance.
The marked leaning of
law in favour of legitimation is also
partly due to the fact that the Arabs who were noted
for their pride of birth and genealogy condemned a
man whose
parentage
is
unknown (majhulunnusab)
to
custom
The
is
The
in wedlock.
of
paternity
Hanafis
two
for
legal effect of
child
also
continues
'
Shafi'fs
for four years after separation by divorce or
death of the husband. These are the maximum periods
of gestation
child that is
is presumed to be
begotten by her previous husband.
But this presumption is liable to be rebutted as when
woman
making
1
'
it
Hedaya
',
vol. iv, p.
180
'Fathu'l-Qadfr
',
p. 180.
MAINTENANCE
343
woman
with
the child
there
is
is
whom
of discretion
nothing in the
it
is
shown that he
is
in fact the
effect in law.
Acknowledgement
(iqrar *).)) is
regarded
primarily Maintenance of
This right continues in the case children
of a boy until he is able to earn his livelihood or if he
is disabled so long as his disability lasts and in the case
against their father.
is
married.
If
'
Hediya
',
MUHAMMADAN JURISPRUDENCE
344
As regards
he
is
Guardianship
an
idiot,
It extends to
a lunatic.
individuals.
of the
minor or
Guardianship
custody (hizanat
the custody
of
the children.
jL**) of
a
child
which
is
not.
The law
gives
puberty
to
The female
the mother
relatives
in
or
permitted to remain
under
woman
life,
the
GUARDIANSHIP
345
her to look after the child properly the law will not
give her the custody.
girl
The
the
has
the
right
agnates.
In
guardian
the
of
on the Court.
The
on
his
death
it
devolves on his
executor
if
he has
appointed one, and on the latter's death to his exeIn their absence the guardianship of property
cutor.
belongs to the grandfather and then his executor.
of the
is
is
guardian cannot
make
gift,
a waqf or a testamen-
which may be
as
sale
or
profitable
purchase,
or
the
may
result
guardian
can
in loss, such
enter
into
MUHAMMADAN JURISPRUDENCE
346
Inheritance
Muhammadans
the
of
family law
of
the
include
all
have been
of the deceased
satisfied,
law of inheritance.
The
his
others.
down
It is laid
'
madan law
The Muham-
among
the claimants
of this
and
in
scheme
scientific
of succession,
to
attempt
which
adjust
is
a most elaborate
the claims of
the
on an equitable
basis.
Obstacles to
succession
There ars
property at
all;
(2)
'
Qur'in
8tiratu'n-Nis4'
'.
INHERITANCE
347
religion
difference
(4)
or
territorial
of
so
constructive,
difference
(3)
jurisdiction
that a subject
non-Muslim country cannot inherit from a nonMuslim subject of the Muslim State, nor a non-Muslim
sojourner in the Muslim State from a non-Muslim
of a
some whose
11
Ashabu'l-fara'id
'
or
U*!
These are
sharers
'
as
sharers
com-
father
how high
soever,
half
'
either one-half, one-fourth, one-eighth, two-thirds, oneThe husband has one-fourth when
third, or one-sixth.
there
is
one-half
there
one-half
when
is
when there
when not
;
is
a child or son's
two or more daughters and no son, they take twothe son's daughter takes onethirds between them
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 circumare
stances;
MUHAMMADAN JUBISPKUDENCE
348
one
become
residuaries
take
or
both
as
sharers
and
residuaries.
The next
Residuaries
is
ordinarily translated as
'
residuaries
',
which
because they
(1)
satisfied.
The residuaries
own right, (2)
residuary in his
are of
residu-
To
how low
soever then,
that
his father
is,
(2)
roots
(asl
residuaries,
if
Ramsey's
'
Law
of
Inheritance
',
pp. 17-31.
INHERITANCE
349
female heir
who becomes
existing
there
is
residuary
kindred
lU..2l
,_yj j)
tions
who
or distant kindred.
They
include
all rela-
only
Shafi'is
if
they
inherit
include
such
are
descended
The next
are mawla'l
class
of
mawalat
heirs
(JXLoJI
in the
.L)
liable.
If there be no
edged as a relation through another.
heir of any of the above classes, then the estate goes
to the person or persons to whom the entirety has
been left by the deceased's will, otherwise to the
MDHAMMADAN JUEISPBUDENCE
350
Exclusion
Then in
who might
<^j.)
is
applied.
There are
totally excluded
the son, the father, the husband, the
daughter, the
mother and the wife.
Exclusion may be sometimes
Exclusion is based on two principles:
partial.
firstly, a
;
is
give
who
is
himself excluded
CHAPTER IX
TOETS AND CEIMES
SECTION
THE
torts
line which
and crimes,
divides
is
Muharnmadan
TORTS
wrongs, Distinction
jurists put
of the public
The test is, to
whom
combined.
called crime.
I shall deal
arise
of
property.
may
defence
when
(Jj)
is
man
based in
Muhammadan
law
arms
another,
is
that,
he
up
against
the protection of law. This right is available
not merely to the person whose life or person is
threatened, but also in certain cases to the bystanders.
The extent of the right is measured by the necessity
of the occasion, so that a person exercising it is not
a
takes
loses
allowed to
inflict, if
he can avoid
it,
required
for
MUHAMMADAN JURISPRUDENCE
362
life
thief
On
same
the
in
principle
cases
of
trespass
or
of
entitled to
is
The law
above
it.
the
Different
kinds of tort
^^^
the
parlance
anayat
of lawyers,
is
prevent
janayat
mostly applied, in
damage
(talaf
man's right
by coercion
to
i_~^)
or destruc-
or by misleading
of his will (ikrah
xl^sl)
is,
them
is
'
Hediya
s Ibid.,
',
pp. 239-40.
TOETS
353
The
by whose act
it is
person or
caused.
is
Thus
caused
injury to a man's
directly by an act of
if
property
another person without the intervention of any other
extraneous cause (al-itlaf mubasharatun g ..lU-c t_)l!!),
latter responsible whether such
or accidental. Nor would it make
was intentional
act
any
if
two
of
or
connexion one must bear in mind the different significations of the technical terms effective cause, preparatory cause and condition as already explained.
When the two causes preparatory and effective are Principles
both acts of free agents but independent of each of liability
other, the general rule applies fastening liability on the
person whose act is the immediate or effective cause
of the loss.
For instance, two witnesses swear before
the Qadi that the husband of a certain woman had
conferred on her the power to dissolve the marriage
and two other witnesses swear that she subse-
quently exercised such power, and the Qadi thereupon passes a decree declaring the marriage to be
dissolved.
Afterwards
if
their
for
ground
example, a man
ground of another
45
employer
of the
354
MUHAMMADAN JURISPRUDENCE
man
orders
another
kills
is
limitations.
right does an
or property of
act
is
done by
virtue
>
Hed4ya
',
TORTS
instance,
if
man
355
own
risk.
For instance, a public road is
and any other use of it amounts to
Hence, if a man makes a projection on a
trespass.
road
and the projection falls on a passerby and
public
him
or damages his property, the owner of the
injures
acting at his
meant
for
traffic
But
if
man
rides
kicks at a passerby
him, he will not be held responsible on the
other hand, if a man ties his horse on a public road
and
kills
the
public road
in
'
Hedaya
',
MUHAMMADAN JURISPRUDENCE
356
The
if
if
it
In other words
the person coerced would be regarded as a tool or instrument of the coercer. On the other hand, if what has
the
last
him.
Suppose
coerces
to
manumit
sion,
otherwise
which
is
it
will.
The
sale
itself
being a
'
Talwih', p. 796
and ante
p. 235.
TOETS
fixed
with
liability.
357
This would be so in
all
cases
of
C's heirs
alone.
to
will
have
The reason
him than
a,
is
and
as
killed
to
Muhammad,
be
made
to
where the
if
in
transaction
of
sale,
as
already
MDHAMMADAN JUEISPKUDENCE
358
Remedies
madan law
are
retaliation
and compensation
(Qisa's,
(diat, irsh,
Muham-
Qawd jj ^laS)
..} &j)
in
cases of in-
people of
Arabia and
and was
largely
of
in
vogue
of Islam.
promulgation
Arabia
in
The
at
principle of
time
the
compen-
was
sation
limits.
The theory
set
up
that retaliation
is,
is
not
of
Ketaliation
allowed
is
only
cases
in
of
wilful
destruction of
case he
is
life
dead,
of similar
injury
or
death on
the
A may be destroyed in
a hand for a hand, an eye for an
On the other
eye, a tooth for a tooth, and the like.
hand, if a person has caused fracture of another man's
is,
and there
is
always a risk to
life.
No
such
difficulty
TORTS
the
in
arises
law
of
eye
Hanafis the
with that of
a
case
of
359
murder
one
for
life
in
the
another.
to
is
equivalent
According to
a slave stands on an equal footing
a freeman, of a woman with that of
life of
non-Muslim
man,
of a
The
law, though
not be ordered.
will
Whenever
pardon him.
is compounded, the
money payable as consideration can be realized only
from the offender himself. So also when compensation
is ordered in cases where there is a doubt as to the
money,
or,
retaliation
if
for
they
chose,
murder or
hurt
is,
or
his tribe
The reason
that
is,
it
is
the duty of
On
If
if
a dead body
is
found
they
whom
them
all
they
killed
may
select
him
(&.LJ).
the inhabitants will
have
to
a dead body
pay compensation.
MUHAMMADAN JDEISPBDDENCE
360
The
are
scales both
in
of
many
according to the nature of
the injury and the loss sustained and the culpability
of the acts causing it.
As I have already indicated, the provisions of the
cases
fixed
unknown
in the
Muhammadan
human
life
may
the
ject of
of the thing,
sub-
The
*Uac)).
first
is
the
proper
or wrongful
of
usurpation
appropriproperties of the nature of dissimilaters,
in such cases the property cannot be restored or
of
if
<di.,
in cases
remedy
ation
wrong or by
mislihi
(ii'tai
but
all
the
will
article
in
plaintiff.
The wrong-doer
is
all
the
jurists,
'
Al-Majallah
',
pp. 142-4.
CRIMES
361
damages in cases
of
to,
caused
or loss
of destruction of,
property.
SECTION
When
certain
the
wrong
or
offence
is
;
primary
called
and
it
II
CRIMES
public
mda'si'at
gives
that
(Ju.*ajb),
rise to
are
rights
violated
crime
is,
certain substitutory
human
is called
classes
limit,
and, in
one of
taa'zfr
law,
it
jiJ).
means a
measure of which has been definon the other hand, the Court is
allowed discretion both as to the form in which such
punishment is to be inflicted and its measure.
punishment,
itely fixed.
the
In
taa'zfr,
down
conditions of a stringent
may be inflicted.
strict
and
inflexible
that
it
must
let
the
new
principle
along
public opinion.
a', vol. v, p. 25.
46
Hadd
MUHAMMADAN JURISPRUDENCE
362
forms:
prescribed
respectively
for
the
following offences
Whoredom,
limitations
nature of the
his
is,
knowledge
of
the law or
the time of
facts, or
commission
the state of
the offence
If
a
there
be
show
of
him.
authority,
charged against
though not of a sound character against the accepted
law which declares a particular act to be punishable
with hadd, this is treated as a doubt sufficient to
his
will
at
of
Even when an
where there
This
is
called
doubt
In certain
some
jurists
is
to
CEIMES
are
required
for
coming which
is
363
its
is
see
to
retract
if
Taa'zir
may
human
autylJI JLU-Jl)
on the principle
The nature
day
is
based
of taa'zir.
by way of
offences may be regulated
in the matter.
The
it
trate to determine, in
1
chastisement, imprisonment and transportation.
'
Baddu'l-Muhtir
',
vol.
iii,
p. 194.
Taa'zir
CHAPTER X
PROCEDURE AND EVIDENCE
Preliminary THAT department of the Muhammadan legal system
sbservation which
re g u l a t e s the procedure of the Courts,
relating
to the trial and proof of claims affords a
peculiarly
provi-
sions
of a
scientific
hammadan law
judicial
officer
system of procedure.
The Muappointed
the
upon
down
as to
whose evidence
is
to be
preferred.
PEOCEDUEE
The
cardinal principle
365
Muhammadan
the
underlying
case
it
is
of
complain
for
the
wrong
to seek
the
who
remedy and
in
of all
which has
a more or
affair
less
under the
is,
But
this
is
Muhammadan
simple
system. Except so far as the jurisdiction of a particular Qadi may have been limited by his order of appointment as regards the class of cases he is to try, a
in the Court
plaintiff is entitled to institute his action
within whose
reside.
And
local
it
jurisdiction
would
make no
difference
in
this
another Qadi.
is
defined as a
.
demand by
a Definitions of
claim, plaintiff,
MUHAMMADAN JURISPRUDENCE
366
)'
from
a'laihi
tnat
the
(jylc
^j^)
demand
is
made
or defendant.
is
called
Muddaa'
These definitions of
in 'Al-Majallah '.
the claimant is the
party who
is entitled to abandon the
if
he
so
chooses
action,
and
the defendant is the
party who cannot, at his mere
pleasure, avoid the suit being pursued.
According to
other definitions the claimant is the
party who cannot
succeed without proving his
allegation and the defendant is the party who may have a decision in his
favour without
adducing evidence, and according to
Muhammad the defendant is the party who denies.
A claim can only be preferred by a person
possessed
of understanding.
Hence the claim of a minor or a
lunatic will not be heard
except through the interven-
According to
31
plaintiff or
whom
plaintiff
Who may
is >
'
'
Hedaya
against
representation.
A Claim mUSt conform to certain roles. For instance,
oanjbxm to"* the
individual or individuals against whom it is
certatjTrules
preferred must be ascertained.
The thing or right claimed
must also be ascertained with sufficient
distinctness;
for instance, if it be landed
property its boundaries
its
value
need not be
it
being
sufficient
If
property.
say
how
it
for
him
arose,
lent,
PBOCEDURE
certain property on behalf of
at
the
same
time,
claim
it
367
somebody
for
else,
he cannot,
himself, but
if
the
of
which
is
whether,
if
~aiJ
of
suit will
plaintiffs
of action
the defendant.
two or more persons were con- Joinder of
that
may happen
interested in denying the parties
or
in
cerned
violating,
more directly than the
some
right of the claimant,
others or all in the same degree, or more than one
of the
person are interested in the establishment
to the
as
claim. Then the
question arises
against
It
important
rules for
parties and the law lays down
the purpose of such selection. For instance, when a
claim is made with respect to a specific article, the
of it is alone to be made
person who is in possession
a
if
the defendant. Thus,
person has taken wrongful
to another and sold
possession of a horse belonging
wants his horse
owner
the
it to a third person and
has
possession of
back, he must sue the person who
the animal. The person that has possession will be
selection
of
entitled to
sue
his
MUHAMMAD AN JUKISPBUDENCE
368
he has paid.
the
use
an
of
bailee
article,
for
their
in
possession
another, may sue
recovery of the article without
property
taken by
hire,
and
person
lessee,
has
been
the
having
when
the
wrongfully
wrong-doer for
party.
In matters relating to the estate of a deceased person the general rule is, that one of the heirs may be
a plaintiff or defendant with respect to a claim which
could have been made by or against the deceased,
except where the claim is for the recovery of a specific
property from the estate of the deceased when the
proper
is
it
made
defendant
is
It is
not, however, bind the other heirs.
likewise competent for one of the heirs to sue on behalf
of the deceased for something which was due to the
sion will
of
however,
all
be
the
heirs.
allowed
to
will not
all
When
there
but
made
against
him
to the
PROCEDURE
369
in
members
the public. In
the benefit of which
of
thing
inhabitants
of
common,
will
it
two
be
to the benefit of
is
villages,
all
with respect to a
a suit
participated
by the
such as a stream or a
sufficient
in
if
some inhabitants
of
each
is
come
or to appoint a representative, he is to be
brought
under
up
compulsion, and if his presence cannot be
secured then a copy of the plaint is to be sent thrice
to him at different times and if he still does not
come it is to be notified to him that an agent will
be appointed on his behalf by the Court and the
claim and the evidence will be heard. If he does
not still come or send his representative then the
Court will itself
appoint a person to watch his
and
after
interests,
hearing the claim and the evidence in the presence of such person and scrutinizing
its
decision.
But
if
whom
an ex-parte decree has been made appears afterwards and objects to the correctness of the decree, he
will be allowed to meet the claim, and his defence will
be heard.
If
his allegation
is
Ex-parte proceedings are not permitted in charges for offences punishable with hadd or
retaliation because in such cases there must be no doubt
as to the proof.
i'Al-MajallT,
47
pp. 277-8.
MUHAMMADAN JURISPRUDENCE
370
When
Reply by
way
of avoidance
LJj).
reply
of
which would
plaintiff,
for
take the oath, it will be decreed. The Qadf, according to the old rule, can base his order on his personal
But nowadays, says the
knowledge of the facts.
Procedure,
where
on necessity,
if
the defendant
of another
'
Durru'l-Mukhttr
',
is
may
jurisdiction
'
he resides
Eaddu'l-Muhtir
'.
PEOCEDUEE
and
are available. 1
his witnesses
may
filed
is
3?1
The Qadi
record
in
whose
Court
itself
has
But
interests.
found.
own
by an agent
suit
of his
filed
is
if
the
it
Court
so
in cases
which
the
involve
decree
(hukm,
+=>&-)
is
defined
as
when
the case
to be preserved.
When a decree
it
bind.
is
The
matter is said
cannot be litigated
the
ticular cases.
be
to
finally
settled
so
that
it
'
HedAya
',
MUHAMMADAN JUBISPBUDENCE
372
'
be void in certain
may
cir-
the Judge
is
parents,
wife or
children.
Review
of
a decree
The law
cases
where
allows
it is
review
(*jJ>.)
of
decree
in
law
.pajuiM).
decree
is
to
is,
be executed by
comply with it
by impriIf a decree can be
to
exercised
is
generally
by delivery
of
certain
property
of
will
order
or
the
the
sale
by execu-
by the
Court
judgement-debtor's property,
such delivery or sale if the judgement8
In
debtor does not otherwise satisfy the decree.
the
debtor
a
decree
will
be
of
execution
money
if
'Fatawi 'Alamgirf
Ibid., vol.
iii,
Ibid., vol.
iii,
',
until
vol.
p. 526.
pp. 501-2.
iii,
p. 525.
PEOCEDUEE
The Court
orders with
For
litigation.
373
it
instance,
all
person adduces
proof that
it
who
died leaving himself and a brother who had disappeared, the Qadi while making a decree for a moiety
of
ing
absent heir.
the
Similarly,
slave or a trove to the
for a
woman who
it
who
ought to
Such reference
must
trator
required
same
of
is
called
possess
a
Qadi,
tahkim
the
for
an
(.^=^).
arbitrator.
The
which
qualifications
in fact
he exercises
arbi-
are
the
but
of their
own
'
the
HeeUya', vol.
vi, p.
430.
MUHAMMADAN JURISPRUDENCE
374
arbitrator
Limitation
Muhammadan
jurisprudence.
the law undoubtedly was that a
The
old
theory of
law
that
in the
Evidence
Juristic theory
relating to
Muhammadan
ifc
ig
is
general
features of the
founded
of a witness (sha'dat
Testimony
testimony
act
juristic
this rule.
of
the
category
of
isjL-i)'
informations
State as
representing the
to such a fact
when
community
When
own
it
either
it
takes notice of
case
the
nexion, that
knowledge
occurs.
it
official
of its
of
own
the
motion.
State
in
But
this
in
con-
is,
of
not,
'
Raddu'l-Mufctdr
'
Ibid., p. 378.
',
EVIDENCE
ments
of
ceptible
375
have been
it
re-
moved
account
such
alone
can
be
said
to
be
False
testimony
Muhammadan
is
to disclose
them
The
false
necessity
fact in question
human
the fact
itself
cerned.
The Muhammadan
the Court
is
so far as
tribunal
is
con-
therefore,
of a person
say
that to give evidence is the right
who
has seen an occurrence to fasten liability upon the
person against whom a right is claimed. So far as
concerned
its
jurists,
only function
is to
enforce
such
is
do
to give true
evidence (shahadat
error of
correct information
perception or
I
'
sjl^-i),
some moral
',
men
either
from
aberration,
Al-Majallah', p. 289.
Fathu'l-Qadfr
but as
it
is
MUHAMMADAN JURISPRUDENCE
376
rily
according to
Muhammadan
jurists
be
one-sided.
makes
principles
as
far
as
mistakes
excluding
possible
provisions
and falsehoods. Some of these are mere matters of
these
to
Having regard
the
law
for
testifies
^Afitness
of oral
ig
ft
When
testimony (oU-l)-
single
against him,
relating to
capacity of a
and
isolated or
Conditions
nature
it
is
called admission
man
claim
made
(iqrar ^KiT)-
master, of parties
a person who bears
a grudge against the opposite party, of a non-Muslim
General reliability
(2)
against a Muslim and so on.
versa, of
in support of their
own
case, of
EVIDENCE
377
religious injunctions as
who
'
'
as witnesses.
Abu
Yiisuf
(3)
is,
of virtuous
of perception ; thus,
blindman in matters
small
child,
which have
to
a lunatic,
or
be proved by ocular
is
generally regarded as
know such
particular child
as whether a
was born
be proved even by
Matters which are of the category of public right and
require absolute certainty of proof, such as offences
entailing the punishment of hadd can only be proved
respect
character.
of
giving
evidence
because
of
her
weak
48
MUHAMMADAN JURISPRUDENCE
378
the witness
of
cited.
The
other
r f>-)
ness
is
*l3
party
is
(jarh, ta'n
disqualified such as
by reason
of bias or interest
Public
or otherwise.
strifes
it
led to. 1
If a
witness
who
persons
rectitude
and
Direct and
hearsay
it
if
heard them.
admitted.
For
the fact
so
mind
as
to
'
'
Similarly,
and
it
is
if
3
3
'
Fathu'l-Qadfr
'Hediya',
'
Hedaya ',
',
460-7;
'
'
;
Hediiya
Al-Majallih
',
',
EVIDENCE
in
possession of
would be
the
man
379
ownership.
It
witnessed a transaction
the
persons
available
who
owing
to
being dead or
at
'
'
evidence of testimony
(Shahadut ala Shahadut), and is allowed by juristic equity because of
called
necessity.
Legal testimony must also agree with the claim Testimony must
otherwise it has no effect. For instance, when the agree with
claim is that a certain property has belonged to the
plaintiff for two years and his witnesses say that it
has been his for above two years, it will not be
accepted though, if they had said that the property had
;
speak to
for five
it
if
there
is conflict
of
have no operation.
Suppose both the parties make contradictory
will
alle- Preference of
a positive nature in relation to the same proof
and both are prepared to adduce proof, the
gations of
matter
heard (tarjihu'l-bayyinat
i
'
JLJyo!)
Hedaya ',
is
to be preferred or
*&-$)
3'Al-Majallih',
p. 291.
The
general rule
MUHAMMADAN JURISPRUDENCE
380
the
that
be preferred.
The Court,
as we have seen, cannot hear evidence in support of
the allegations of both, because the allegation of one
ul-hal
JUjl)
must be
cannot
v.jUyaU)
and
false
be
will
the
testimony
information
or
in
support of it
Thus, if one
evidence.
to
the latter.
purchased
will
be
preferred
to
the
him
and
to
belongs to
them
to be
rights, they will be declared
as there is no reason for preferring the
claimed exclusive
owners
proof of one to that of the other.
When the word In certain cases where both the parties are unable
of one party is
to adduce proof, but there is a presumption in favour
to be accepted
of
allegation of one of them arising from circumjoint
stances
(tahkim-ul-hal
Jlssll
^j^z^),
the statement
require
the
EVIDENCE
381
regarding
articles like
be
will
presumption
made
in
favour of
the wife
in
and the donee says that the thing has perished, his
word
to
is
the
convert
of
to
the heirs
at the time
Islam
the
Muhammadan,
before
be
to
is
his
woman comes
this
death,
fact
the
statement
The reason
accepted.
to Court,
confirms
the
is
that,
she being a
of
allegation
Sometimes when the parties to a transaction cannot agree and neither of them is able to
the heirs. 1
For
instance,
when
Besides
(Qarinat
circumstantial
is
of
instance,
conclusive
if
person
itLU).
is
seen
if
it
For
Heddya
',
Circumstantial
evidence
MUHAMMADAN JURISPRUDENCE
382
Documentary
evidence
for
customary
For
therein.
enter
to
people
instance,
their
transactions
documents
official
and
the
Admission
be
must, however,
must be voluntary,
so
that
unconditional, and
obtained by coercion
if
it
it
testimony
nesses retract
wards,
it
their
Estoppel
any
loss,
be held liable.
The law sometimes does not allow evidence being
given of a certain fact having regard to the conduct
of the party desiring to adduce such evidence.
This,
as I have stated elsewhere, is called bayanu'd darurat
'
'
AI-Maj114h', p. 297.
FatiwA Alamgfrf ', vol.
'
iii,
p.
534
'
;
Al-MajallAh
',
p. 297.
CHAPTER XI
CONSTITUTIONAL LAW AND
TEATIVE LAW
THE
conception
of
State
in
the
ADMINISMuhammadan
Constitutional
common- law
wealth of all the Muslims living as one community Conception
.,
,
,.
of a State
.,
,.
,
under the guidance and direction of a supreme exe- m
h
ffl
f
cutive head called the Imam or the Caliph.
The re- i mam or head
sponsibility of administration rests with the Imam, but of the State
system
is,
as already mentioned,
that of a
his
appoint
all
or
he may delegate
He
to different persons.
may, for instance,
ministers to
he may delegate practically
powers
whom
He may
such as the
command
of the
to
in
MUHAMMADAN JDEISPBDDENCE
384
the
Qadi
when
suit
or
complaint
Imam
him
Imam
against the
instituted
is
before
redress
to
the wrong.
The Imam
He is merely
the representa- o f fo e
people, from
To be elected
privileges.
as I
lima',
'
.
and
of
.,
the
.,
.,
..
first
Abu Bakr
that
Once duly
is,
elected the
Imam
the
(2)
of
the
has
to
retain
his
position,
he then
1
In these passages
ceases to be the Sultan (Yana'zil).
cannot
a
reluctant
one
effort of the
help detecting
'
Raddu'l-Muht&r',
Imam
as the
CONSTITUTIONAL LAW
385
assumed
by force
concede to them.
nowers
not
is
it
which
law
the
did
not
necessary
may
who
be chosen as Sultan
is
virtuous ('Adil)
is
out a
fact
of
that
history
for
long time a
Muhammadan States have existed withcommon Imam or executive chief and in fact
number
of
the
first
four
'
'
guided
rightly
Caliphs,
trustee
of
among
the
Muhammadan
in
no sense
is
Administra-
its tive
law
(/c)>
khira'j
r K^)
on
rate levied
FatiwA
49
'Alarngfri
',
vol.
iii,
p. 390.
MUHAMMADAN JURISPEUDENCE
386
the
tection
of
Muhammadan
the
The
community such
as
revenues is to be
of
administration
spent for the purposes
generally.
It was at first doubted whether the Imam could take
rest of the
anything from the public treasury for his own maintenance and of that of his family, but when the public
affairs of the community increased in complexity and
dimensions so that the Imam could have no time to
earn his own livelihood, the law permitted him to
draw upon the public funds for the purpose.
The Imam IB
the custodian
of public property
The Imam
munity
is
also
intended
or of
the
for
the
section of
benefit
the
of
the
com-
community such as
Of
the
principal
Muhammadan
sources
of
State, zakat or
Imam
to
this also
revenue open
to
the
poor-rate,
jiziya
or poll-tax, 'uehr or tithe, and khiraj call for a some-
Zakat or poorrate
what
',
vol.
ii,
p.
ADMINISTEATIVE LAW
38?
it
it is left to the
religious sense of each Muslim even
in self-governing Muhammadan countries whether to
pay zakat or not. It is levied on a man's posses-
on gold and
goods of merchandise and the like, provided they reach a certain value at the end of the year.
Generally speaking it is two and a half per cent of the
aggregate. Jiziya which is also a personal tax may be Jiziya or
imposed on the non-Muslims either under a treaty in poll-tax
which case its amount is to be determined by agreement
silver, cattle,
of
it
is
who
most
fit
>
'
Hediya
',
tittie
MOHAMMADAN JUBISPBUDENCE
Khiraj or
the land of
But
is
Syria
subject to khiraj
by consensus of
the Companions. Whether land is to
opinion among
be assessed with Khiraj or 'Ushr, depends mainly on
the means of irrigation. If a country which has been
to be assessed with
according to
Abu
in the vicinity.
According to Muhammad, if land is
brought into cultivation by digging wells in it or by
springs of water coming out of it or by the water of
then
khiraj
liable
is
it
vary
land and
to
payment
with the
of
kind of
tithe.
crops
It
The
rates of
grown on the
not, however,
productive powers.
value of its average produce. If
the produce of the khiraji land is destroyed by
floods or drought or blight, the revenue ceases to
its
is
but a j so
yjfofr
re g ar(j to the
fiscal
matters
Muhammadan
law.
ADMINISTBATIVE LAW
No
one
sesses
the
unless
he
389
man
condition
of
not,
according to them, be treated as
Nor, according to the Hanafis, differing from
the other Sunni Schools, is it necessary that a Qadi
should be a mujtahid or jurist. The Hanafis hold
that the function of a Qadf is to redress wrongs and
to enforce rights which it is possible for a Qadi who
does not hold the rank of a mujtahid to do acting
acter
will
invalid.
of
upon opinions
others
who
is
appointed
who
is
he must also in addition to his possessing the qualifications of a Qadi mentioned above be an 'Adil or
man
of virtuous character.
A woman may
may
diction or he
classes of
may
cases.
may
it.
a particular case.
Hediya
',
MUHAMMADAN JURISPRUDENCE
390
him.
When a deputy has been properly
he
can
appointed,
pass orders on evidence heard by
the principal Qadi or vice versa.
The Qadi holds his office at the discretion of the
Sultan who may dismiss him on suspicion or even
without suspicion. Abu Hanifa says that a Qadi should
not be allowed to hold office for
more than a
the Qadi
On
the
death
of
a
however,
Sultan,
year.
does not, according to accepted opinion, vacate his
dismiss
office.
Quasi judicial
Among the quasi judicial duties ordinarily attached
duties of a.Qadi
to the office of a Q^JJ ig the pro t e ction and supervision of trust property like waqf, of the properties
and interests
persons.
supervise
so far as
of
may be
it
property and
trust
the grant.
The
authority
grantor,
wishes
of
the
benefit
of
the
whether
missing
they
is
His
individuals.
selling
law
are
limited
so
that
it
is
difficult
for
waqf
is
the
power
of supervision
FaMwa
'
Ibid.
'Alamglrf
',
vol.
iii,
p. 390.
ADMINISTRATIVE LAW
391
necessary
may
heirs are absent in a foreign country or whose whereabouts are not known or if some of the heirs are
three cases
(1) if the deceased has
the heirs are minors, and (3) if he
(without appointing an executor).*
:
>
Fatiwd 'Alamglrf
Ibid., p. 513.
',
vol.
iii,
left
has
debts, (2)
left
pp. 418-20.
if
will
CHAPTER
XII
between
Muslims and
non-Muslims
THE
propose
here
main
principles
The
had
occasion to
in the writings
of
mention elsewhere, is
Arab jurists under the
heading of
According to
Declaration of
war
Muhammadan
law the
Muhammadan
is
usually
Imam
there
of the
such
an
State,
supposing
Executive Chief recognized by the Muhammadans,
would be justified in declaring such a war against
the non-Muslims of Daru'1-Harb or an alien State for
is
Prophet
Mecca
it
is
do
enough
to
hostile
non- Muslim
so,
State.
against
That Jehad
an alien or
is
permitted
Islam and
of
393
limited
is
by
: --
That
Jehad
explained,
(Husnun
li
something
is
a'ynihi,
else
said
xUxl
(Husnun
to
why, as already
be good not in itself
^^o-)
li
is
but
ghairihi
for
s _AJ!
the sake
(j*"-*- )>
of
namely,
they refuse
If
be
of
all
rights in
Muslims.
like the
it
is
Islam.
Non-
to the enjoyment
power as
to
of
pean diplomacy.
In the event of a religious war, the women, the children, the aged and the diseased among the enemies
are not to be killed or maltreated, but such of them
as have taken part in the fight cannot claim such
^^
g^
beligerent
The goods of the enemy that are cap- states
consideration.
tared during hostilities are treated as a prize in the
among
The head
of
the conquering
Muslim State
the
is
soldiers
or
if
he chooses
which
fight,
may impose
as
50
'
Heddya',
^ he
MUHAMMADAN JUEISPKUDENCE
394
become
law
so that
theirs
according
not be lawful
will
it
Muslim owners
to
the
to
take the
same
in the
Muhamuiadan
the previous
from the captors
for
But Muscannot be
Duty
Mm
if
none
join,
infirm
to
in
join
the
fight
them to fight in self-defence, because otherthe infidels triumphed, Islam would not be safe.
head of a Muslim State may, if he considers
sary for
wise
if
The
Treaties
it
beneficial
to the
with a non-Muslim
Muhammadans, conclude
a treaty
notice
of
otherwise
his
it
law forbids.
intention
If
violation of the
to the
would be an act
395
for a
Muslim
to
theiu.
fight
be of opinion that it is not expedient that those nonMuslims should continue to be under such protection,
the protection will be withdrawn after notice has been
1
given to them.
The
lims
relations of the
are
determined
mainly
Daru'l-Islam
or
(^JLJl.b)
Daru'1-Harb
(^^i)
literally,
.b)
to be regarded as
is
territory
of
safety,
territory of
literally,
war.
There can be no question but that a country governed by a Muslim ruler according to the laws of
the Islamic religion is Daru'l-Islam. Nor can there
be any doubt that a country under a non-Muslim
Government in which a Muhammadan cannot live
with personal
security
religious duties
is
and
freedom
Daru'1-Harb.
But
to
it
perform
his
that a self-governing
Harb
It
if
fulfils
there, that
'
'
forced, that
is,
non-Muslim laws
1
'
Hedaya
',
for the
non-Muslims
MUHAMMADAN JUKISPEUDENCE
396
and the
Muhammadan
Muhammadans,
character of Daru'l-Islatn.
the
On
a Muslims' country being conquered by the non-Muslims and turning into Daru'1-Harb it is lawful for the
Muslim prisoners
to oppose,
and
with them in
fight
One
be
of the
treated
tests,
as
whether congregational
'Ids
should
be held
circumstances then
is allowed
by the
in
and
Under what
Fridays
prayers during
the country.
1
the
of
holding
Friday
Muhammadan
law
books
One
prayers
of the
mentioned in the
is
that such
said
in
can
be
a
town
where
there is a
prayers
only
Governor and a Qadi to administer the laws and to
enforce the punishment of hadd and retaliation. The
conditions
author of
law.
to
'
'
Hedaya
According to
be
held
in
this
the
is
accepted
prayers are
where there are roads and
town
that
says
markets,
tion
of
under
Friday prayers
the
authorized
order
by
of
him
is
the
in
that
behalf.
Muslim
If
nonhave
the
territory
obey him.
try
In a self-governing
Muhammadan
coun-
non-Muslim
if
'
'
by the consent of
circumstances it is
ii,
pp. 22-6.
the
the
397
Muhammadan
mentary
of
when
is
in
Shaikh
o.oina'fl of
it
forced,
it
actually
not
does
mean
that
all
the
laws
should
Qadi should
madan laws
be
should
enforced. 9
The
substantial
be liable to molestation.
It may be observed here that the Friday and 'Id India is
Daru'l-Islam
prayers are regularly held all over India and recognized to
be
validly
of
India
of transfer of
Courts.
do not
'
',
Ibid., vol.
i,
p. 589.
398
MUHAMMADAN JURISPRUDENCE
worldly aspect,
spiritual aspect,
vidual Muslim.
it
is
it
enforcible
in its
The head
of
the
own
jurisdiction.
territory of non-Muslims is required to
as is practicable for him to do so, to
conform, as far
the rules and
inhabitants
of
the
place.
The reason
is
that
the
Glossary of Arabic
Ada
Adabu'1-Qadi
procedure.
'Adat
tale.
rectitude of character.
custom.
'Adhab
spiritual punishment.
of rectitude virtuous
'Adil
= man
Af'al
acts
just.
practice.
= physical acts.
=
mental acts.
Af'alu'l-qalb
Ahad = isolated tradition, information.
Af'alu'l-jawarih
sworn
Ahlaf
Ahliyat
allies.
legal capacity.
Ahliatu'l-wajiib
obligations.
Ahliatu'1-ada'
the
capacity for
charge of obligations.
Ahlu's-Sunnat wa'1-Jama'at
Ahlu'1-hawa = literally
Aiyyun = whoever.
men
inherence
of
exercise
of
rights
and
rights
and
dis-
of passions
and
desires, heretics.
tribe
= causes.
'Alara = proper
'Alamat = sign.
regiment.
A'lal
noun.
Al'am'ru
Al-ashya'u'l-mubahatu'l'umumiah
common
Al-fa
use of
property
delegation to
which
is
for the
all.
then.
Al'ikhtiar
to wife.
choose
thyself
delegation
of
power
of divorce
MUHAMMADAN JUEISPEUDENCE
400
'Alim
niubasharatun =
Al-itlaf
damage caused
of
directly
any
by an act of
other extraneous
cause.
tasabbuban
Al-itlaf
injury
which
is
the
combined
result
of
Al'-mash('at
if
thou wishest,
divorce
thyself;
delegation to
Amin =
import.
trustee.
Anbiya
prophets.
Aqar = landed property.
'Aqd = contract.
= cornmodate
'Ariyat
Arkan =
loan.
=
Ashab = Companions of the
Ashabu'l-fara'id = sharers.
'Asba
doctors
Ashabu't-takhrij
inferences from
in
higher
Prophet.
who
authorities and
them.
Ashabu't-tarjih
higher authorities.
among
Ashabu't-tashih
roots
original (rights).
authorities of law.
Asnad
---
'Aul
doctrine of increase.
'Awarid
Ayat
circumstances.
verses.
= signs.
=
defect.
'Ayb
'Ayn = specific or determinate property.
'Azimat = strict law.
Bada't
capital.
Badihi
intutional knowledge.
Badl
Bai'
(application of a word) by
a sale of property for money
= public treasury.
Bai'u'1-wafa = a mortgage by
Batil = void.
way
;
401
of substitution.
sale.
Baitu'1-mal
conditional
= internal.
Bayan = irrevocable
repudiation.
Bayanu'dh-dharurat
sale.
Batin
interpretation by necessity
evidence; proof.
innovation, heresy.
Estoppel.
Bayyanat =
Bidat
Dabt
=-
power of retention.
Dahriatun = atheists.
Dakhil = one who has joined a new
Dalalatan
tribe.
implication of language.
by
Dararun fahishun
and serious
manifest
injury.
Darurf = necessary.
Dawa' = claim.
Dayn = indeterminate
property.
Dhahni = mental.
Dhawi'l-arham
distant kindred.
Muslim
to
the
state.
person
making
contract.
= philosophers.
=
lawyer.
Faqih
Fard = obligatory (act).
Falasifata
= vitiated invalid.
= transgressor of religious
Fasiq
Faskh = revocation, annulment.
Fasid
Fiqh
injunctions.
separation.
acts cancelling or
annulKng contracts.
Ghairu maljiin
non-constraining (coercion).
Ghairu mustabinin = writings other than those
tible and lasting form.
Fusiikhat
51
in a percep-
MUHAMMADAN JUEISPEUDENCE
402
Ghasab =
usurpation.
=
Ghayia =
that which
Ghasib
usurper
trespasser.
relates
the
to
result
aimed at
(in
contract).
fraud.
Ghuriir
Hadd =
a form of punishment.
Hadith = precept of the Prophet a
Haddathana = so and so related to us.
Haiwanat = animals.
;
Hajj
pilgrimage.
Hakim = Lawgiver
Halal
Haq =
tradition.
Magistrate
Judge.
proper.
right.
Haram =
forbidden
alien.
(act).
to be administered.
HazI = jest.
Hfba = gift.
= gift
Hibabi Sharti'l-'iwad
Hiba
bi'l-'iwad
gift
Hikmat, maslahat
Hissi
on condition of an exchange.
on receiving something in change.
policy of law.
natural acts.
= custody.
=
doctrine of exclusion.
Hujub
Hukm = law command decree
Hukmi = symbolical (possession).
Hurmat = right to reputation.
Hizanat
Hasanun
good
order.
(acts).
'Ib&ratun
(the
conveyance
of
meaning
=
= securing,
Ihsan
original acquisition.
legally married.
directly)
by
the
li'tai mislihi
403
= proposal.
Ijara = letting and hiring.
Ijma' = consensus of opinion.
Ijtihad = exposition of the laws.
Ikhtiar = volition.
Ikrah = duress.
Ila' = a form of divorce.
Ilham = inspiration.
'Illat = effective cause.
Ijab
'Ilmu'1-Fard'
'Ilmu'l-Ustil
Iinan
ment
Iradat
mind.
faith.
Irsh
to one's
of faith;
acknowledge-
of legitimacy.
intention.
compensation.
I'sawiatun = followers of Christ.
Isharat = gestures or signs.
Isharatun
Istidlal
connotation.
Muhammadan
Islam
Isqatat
religion.
Malikis
Istihsan
mode
of interpretation.
juristic equity.
Istishab-ul-hal
presumption
arising
from
circumstances.
Istisna
a kind of sale.
Istishabu'1-hal ==
presumption of continuance.
= acts of faith.
I'tiqadat
Ithbatat = creative acts.
Jahl = ignorance.
plural.
Janayat = Torts.
Jarh = exception or objection, cross-examination.
Jihad = religious war.
accompanying
MUHAMMADAN JUBISPEUDENCE
404
Jiziya
Juz = a
poll-tax.
part.
Kaffarat
atonements
certain obliga-
tions.
= ungrateful a non-Muslim.
Khafi = obscure.
Kamilatun = perfect (punishments).
Kafir
conferment
stripping
on
the
wife.
marriage
Khalf
substitotory.
Khula'
lit.
= succession.
=
Khamr an intoxicating
of the
power
to dissolve
Khilafat
drink
by fermenting
prepared
the
juice of grapes.
Khas =
specific word.
Khasm = opponent.
Khatd, = mistake or accident.
Khariji = outward.
Khayaru'l-bulugh
Khayaru'l-'aib
option of defect.
=-
Khayarur-niyat
Khayarush-shart
Khaydru't-taghrir
ground
option of puberty.
option of sight.
==
(in
sale).
a transaction on the
of fraud.
= suretyship.
=
a form of land tax.
Khiraj
Khitab = speech a communication from God.
Khula' = power given to wife for consideration
Kafalat
to
dissolve
marriage.
Kinaya =
allusive (words).
Kitabat
writings.
Kull
all.
Lia'n
Lazimuhu'l-mutakhkhar
Mi =
Maa'
sil'at
crime.
Mahkum
bihi
Mahr =
objectives of law
applies
405
persons.
acts.
dower.
Mahru'l-mithl = proper dower.
Ma'hud = particular noun.
Majaz = tropical or secondary word.
a man where paternity is unknown.
=
lunatic.
Majmin
Makilat = things sold by measurement of capacity.
Makruh = condemned acts.
Makruhun kirahata tahrimin = condemned acts approximating
Majhul unnusah
to unlawfulness.
Makruhun
kirahata tanzihin
= condemned
acts approximating
to lawfulness.
Mai
property.
Manfaat
commended
act.
general considerations
of
a supererogatory but
usufruct.
wa'1-istislah
public good.
Mauziinat
Mawat = waste
land.
Mawla-mawalat
Milku'1-yad
(traditions).
successor by contract.
rights of possession.
Milku'r-raqba
proprietary rights.
Milku't-tasarruf = rights of disposition.
= primordial covenant.
Mithaq-i-azali
Mithli
similars.
Muajjal
= exigible dower.
= deferred dower.
MUHAMMADAN JURISPRUDENCE
406
Mu'allal
Mubah
permissible acts
transaction.
res nullius.
= unequivocal word.
Muhaqala = sale of wheat io
Mufassar
in
the
womb.
Muharim = persons permanently prohibited from intermarriage.
Muhkam = a word, the meaning of which is unalterably fixed.
Mujlis
meeting.
= vague.
Mujtahid = jurist.
Mujmal
Mujtahidun fi'1-Madhhab
fi'sh-Shari'
Mujtahidun
Mujtahidu'l-Madhhab
jurists following
particular school
of law.
Mujtahidunu'l-Muqayyid
jurists
position.
Mujtahidunu'l-Mutlaq
jurists
position.
appropriate (reason).
relations.
exchange.
followers.
Muqallids
Murabaha
certain contingencies.
Mursal = disconnected
Musalahu = devisee.
(tradition).
and stated
profits
Musaqat
407
Musawama =
sale by bargaining.
Musha' = pre-emption.
Mushtarak = homonym.
Musi = testator.
Muslahat = principle of public welfare.
Mustabinun ghairu marsumin = legible writings but not in
customary form.
Mustabinun mursumun
legible writings in the customary
=
form.
Muta't
==
a present to the
temporary marriage.
Mutawatir = proved by universal testimony.
Mutlaq = absolute.
Mutwalli = the trustee of a waqf.
= operative.
Nafs = person life.
Nafsu'l-wajub = obligation per se.
Nahi = prohibitive law.
Nafid
Najisun
bi a'inihi
Nakara
Naql
unclean.
indeterminate.
transfer.
Naskhu'l-qira'at
Naskhu'1-hukm
Nass = texts.
Nazm = words (of the Qur'an).
Nikah = marriage.
= motive.
Nuqud = money.
Qabda = possession.
Niyat
Qabiil
acceptance.
of
an obligation.
Qaran = period.
Qard = loan.
Qasd,
intention.
Qasiratun
Qata'f
Qaul
=.
imperfect (punishments).
absolute (text).
act of utterance.
Qawd = retaliation.
Qimi = dissimilars.
= retaliation.
,'a,
wife;
MUHAMMADAN JURISPRUDENCE
408
Qismat
partition.
analogical deduction.
Qiyis
Qubhun = bad
Qur'an
Qurbat
(act).
Muhammad.
Eahn =
Kaja'i
Eaqaba
Easiil
pledge.
a revocable repudiation.
= corpus a slave.
;
messenger
Prophet.
= usury.
Eida = consent.
Eubbu'1-mal = owner
Liba"
of capital.
Eukhsat = modified.
constituent.
Eukn
=
donatio mortis
Euqba
causa.
= preparatory cause.
Safih = a person of weak mind.
Saghir = minor.
Sahibu'l-bid'at = men of innovation
Sahfh = correct valid.
Salam = a form of sale where the
Sabab
heretics.
Salat
price
paid in advance.
is
prayers.
= providential circumstances.
a sale of gold or silver for gold or silver
Sainawi
Sarf
money-changing.
= plain (word).
Sariq = thief.
Saum = fasting.
Sayd = game.
Shahadat = oral testimony.
Shahadut ala shahadut = evidence of testimony.
Shara' = lit. pathway, the legal code.
Shari'at = legal code.
Shara'i = juristic (acts).
Shauq = desire for (a thing).
Shayyun = thing.
Shirkatu'1-milk = ownership of property by two or more
Sarih.
persons
in undivided shares.
partnership in contract.
Shirkatu'l-muafadat = partnership on a
Shirkatu'l-'aqd
Shirkatu'l-'anan
unequal partnership.
basis
of
equality.
409
= partnership in capital.
= partnership labour.
partnership credit.
Shirkatu'l-wajuh
of application of law.
= elimination.
= derivative noun.
Sigha = grammatical form.
Shighar = a form of marriage
Sibr
Sifat
dower.
Silat
Suaria
Sunnat
Suras
Ta'amul
traditions
successors
successors
(of
Companions).
successors of Companions.
science of interpretation of the Qur'an.
Tafwfd
delegation.
Taghrir
Tahayyu
Tahkfrn
fraud
deception.
arrangement.
arbitration.
consummation
Tahlil
of
Tafsir
custom, practice.
Taba'taba'in
Tabi'tin
(manifestation
of
marriage required
for
reunion with
Tahsin
= what
is
proper.
a general proposition).
Talabu'l-muwathibat
first
assertion
of
the claim
by
pre-emptor.
Talabu't-taqrirwa'l-ishhad = assertion of a pre-emptor's claim
in the presence of two witnesses before vendor or vendee
or on the spot.
Talabu'l-khusumat
Talafmuqsan = damage
depreciation.
dissolution of marriage by the husband; repudiation;
divorce.
;
Talaq
Ta'n
MTIHAMMADAN JURISPRUDENCE
410
= execution.
= following opinion
Tanfid
Taqlfd
Taqrfr
knowl-
it.
fixing (meaning).
Tarjihu'l-bayy'inat
Tark = omission.
Tasarrufat
preference of proof.
expenditure
voluntary
acts.
Tasarrufat'ush-shari'
lawful acts.
= a doctrine of punishment.
Tazwij = marriage.
Thaman = consideration price.
Thanawiyatun = those who believe
Thayyiba = a girl who has had sexual
Thawab = spiritual merit.
actions.
Ta'zir
Tuhr
'Uqubdt
of anger or contempt.
of innovation ; heretics.
= men
punishments.
'Ushr
=
=
goods.
tithe
a kind
non-Muslims
Usulu'1-Fiqh
==
of
alone.
science of law.
= agency.
Wadf = sale at less than cost
Wad'af = declaratory laws.
Wadiyat = deposit.
Wahi = revelation.
Vakalat
price.
Wajubu'1-ada"
Wasf
magians.
'Urbtin
'U'riid
negligence.
an exclamation
Ummatu'd-Da'wat
'Urf
two gods
period of purity.
Turku't-tarwd
Uf =
in
intercourse.
Wasiyat
Waqi'at
bequest.
cases.
= idol-worshippers.
=
Wildyat
rights of guardianship
=
Wirathat
right of inheritance.
Wajub = obligations.
Yad = possession.
Wathnfyatun
authority.
from
411
Zahirun
Zaujfat
Zanni
Zakat
=
=
Zihar
==
in appearance.
marital rights.
presumptive.
poor-rate.
INDEX
Abu Hanifa
founder o one of the Sunni Schools
. .
23
. .
24
. .
25
. .
2*>
25
. .
25
..
..
26
..
..
26
..
..
27
105
. .
. .
. .
.
. .
pupils of,
known as the upholder of private judgement
strict in sifting traditions
. .
. .
24
. .
assigned prominence
extended the doctrine of Jjma or consensus of opinion
..
recognized the authority of Urf or usage
. .
Actsand badness
and abominable,
..
of,
and their
legality
. .
..
..
..
118
..
..
..
193-4
..
..
physical or mental,
..
..
..
..
193
. .
. .
. .
. .
194
..
..
..
..
194
. .
. .
. .
195
of utterance or
conduct
voluntary or involuntary
and
..
. .
Administration of
195
. .
. .
195
. .
196
. .
. .
..
..
198-9
199-200
..
..
. .
200
. .
. .
. .
200-1
..
. .
37
Muhammadan law
..
ii'dt/f
..
..
and
members
expert advisors
difficulty
and
197
. .
..
in the early days in British India
gradually confined mainly to family relations
and
195
. .
. .
binding
. .
..
acts of faith
. .
Originating, are revocable or irrevocable
creating legal obligations or annulling contracts
..
now abandoned
..
in the,
..
. .
..
among
..
. .
37
its
. .
37
. .
37
artificiality of
rules of equity
. .
39
. .
43
INDEX
413
PAGE
. .
. .
...
. .
principles relating to,
in matters relating to dispositions of property
.
. .
. .
44
. .
. .
44-5
. .
. .
46
. .
385
385-6
Administrative law
Public treasury
. .
. .
..
. .
..
..
..
386
.'.
..
..
386
..
..
386
Agency
..
..
. .
. .
. .
388
..
..
..
..
321-2
Agency
agent acting in ignorance of withdrawal of authority
what
it
consists in,
constitution
who can
of,
be agents
..
..
240
..
..
..
..
..
315
. .
. .
. .
315
..
..
..
..
315
. .
. .
. .
. .
315
..
..
..
of,
. .
315-6
. .
. .
316
. .
. .
. .
..
matters of business
in torts or crimes no, ..
allowed in
principal
in a suit
all
how
far
bound
. .
..
or benefited
.
by acts
. .
. .
315
316
316
. .
316
..
..
316
termination
..
..
316
of,
..
Ahlu-l-Hadith
do not accept the doctrine of Taqlid
give analogy very narrow scope
make extensive use of traditions
. .
. .
176
. .
. .
. .
176
. .
. .
. .
175
..
..
..
176
. .
. .
2g
. .
. .
29
Ahmad
ibn Hanbal
. .
'
',
. .
. .
. .
Bukhari pupil
. .
. .
. .
of,
. .
29
29
30
30
30
Analogy
defined
..
..
..
..
138
..
..
..
138-9
INDEX
414
PAGE
based on Qur'an, tradition or Jjma'
docs not establish new law
. .
law of a text
may
..
.
. .
139
. .
. .
139
139
arguments against,
arguments for,
. .
. .
(4)
1/nia'
..
139
. .
. .
. .
139-40
. .
. .
. .
. .
110-1
of,
142
..
..
142
. .
. .
..
exception
(3)
138
,,
.,
..
..
143
145
. .
157
See ILLAT.
examples
of,
. .
. .
. .
. .
. .
. .
157
. .
. .
160-2, 165
Apostates
treated as outlaws
. .
to,
. .
. .
. .
. .
253
..
..
..
..
253
Arbitration (Tahkim)
Allowed in what cases
. .
Qualifications of arbitrator
powers of arbitrator . .
A'ryat
. .
. .
. .
. .
. .
. .
373
. .
373
. .
. .
373
374
. .
. .
. .
. .
Atheist
defined
Ashab
..
..
51
See COMPANIONS.
defined
. .
. .
. .
. .
296
. .
. .
296
. .
. .
296
. .
. .
. .
86
. .
. .
. .
87
. .
. .
. .
243
Bequest
plural number in, denotes two or more
'
to A and the poor ', how construed
by infant
is
void
. .
..
..
..
..
..
justification of,
. .
. .
. .
. .
. .
310
311
limitations on,
..
..
..
..
..
311-2
acceptance
..
..
..
..
..
312
defined
..
of,
INDEX
415
PAGE
..
..
..
..
..
. .
. .
. .
. .
312
312
. .
. .
. .
. .
313
a class of persons
. .
. .
. .
. .
313
charity
. .
. .
. .
313
. .
. .
313
. .
. .
313
embryo
. .
non-Muslim
. .
may
be subject
of,
. .
. .
313
. .
314
. .
314
no formality
..
..
..
314
..
..
..
..
321
. .
. .
. .
. .
321-2
. .
. .
322
executor
for
making
revocation
..
a,
. .
of,
may become
. .
of,
315
. .
Bukhari
pupil of Imam Hanbal
chief of the Imams of traditions
. .
. .
. .
. .
. .
. .
. .
. .
in collecting traditions
his collection considered most authoritative by Sunnis
31
. .
31
30
30
Caliphdivision
of
Muhammadans
in electing,
.
powers of,
has no legislative function
administration of justice under
.
. .
. .
. .
. .
19
. .
. .
. .
19
. .
first four,
..
. .
..
. .
is to
may
delegate powers
bound by Qadi's order
21
60
60
..
60
. .
383
. .
. .
. .
. .
. .
. .
. .
. .
384
385
appoint successor
382
. .
. .
. .
. .
is
is
is
19, GO,
. .
is
may
. .
..
. .
383
384
. .
385
385
. .
385
. .
335
. .
. .
. .
. .
. .
Charity
what
is,
bequest in favour of
. .
. .
. .
. .
. .
307
313
Coercion
effect of,
on acts
. .
. .
. .
..
..
..
. .
. .
232
233,
237
23
INDEX
416
PAQE
and negatives consent
differently, revocable and irrevocable acts
vitiates intention
affects
. .
affecting divorce
act done under, when
. .
. .
imputed
to coercer
. .
..
..
234
. .
231-5
235-6
. .
. .
. .
. .
. .
. .
liability for,
234
. .
23G-7
236-7
. .
. .
355
. .
. .
. .
355-G
Commentators
age
of,
Indian, compiled
Commodate Loan
defined
35
. .
..
..
35
..
..
35
(A'riyat)
..
..
..
..
..
318
..
Companions (Ashab)
belonged to the second period of Muhammadan legal history
agreement among, a source of law
16, 18
. .
. .
. .
18
. .
. .
. .
74
. .
215
See INTERPRETATION
Conditions
proper
. .
. .
. .
. .
. .
. .
. .
. .
..
..
. .
. .
. .
name
..
. .
of a contract
215
.
215
>
216
285
Contract
Signification of, wider than in English law
conception
mutuality
of,
of
. .
dominant idea
282
. .
for,
. .
. .
282-3
. .
283
. .
283
of,
is
formation
. .
of,
no formality necessary
for,
Conditions of
legal fitness of persons
legal fitness of subject-matter
....
. .
. .
customary conditions
conditions in aid
effect of joint
of,
in,
. .
. .
286-7
287
. .
..
285
285
..
288
287-8
..
288
upheld
valid
...
285
. .
. .
. .
..
..
..
INDEX
417
PAGE
288
classification of,
. .
. .
. .
. .
contingent
. .
. .
. .
. .
. .
. .
289
289
Consent
intention distinguished from,
is a perceptible fact
226
220,
. .
. .
. .
. .
. .
. .
. .
. .
226
. .
. .
. .
383
..
..
..
52
. .
. .
. .
. .
..
..
..
..
361
361
. .
. .
362
Constitutional law
conception of a state
the office of Imam See CALIPH.
.
Covenant
primordial, between
Crime
what
is,
..
punishments for,
kadd see HADD.
. .
. .
on
ta'zir
. .
. .
. .
. .
. .
. .
363
363
Custom
a source of law
. .
...
. .
is
no legal force
law or lima
if
repugnant
to revealed
authority
of,
. .
valid
. .
. .
..
distinguished from particular usage
must be generally prevalent to be accepted as law
no
is
territorial
. .
. .
55
..
55,136
55
55, 136
. .
..
. .
. .
55,
136
. .
136
..
..
136-7
137
. .
137
. .
. .
. .
137
. .
. .
. .
137
. .
137
. .
. .
...
. .
. .
. .
. .
. .
India
..
is
Darul Islam
..
..
..
..
..
395-6
. .
. .
. .
. .
397
. .
254-5
. .
. .
. .
. .
256
256
..
..
257
..
..
257
Death-illness
what
is,
. .
. .
. .
. .
. .
capacity of person in,
revocable and irrevocable dispositions of persons
..
person in, cannot sell to creditor or heir
53
in,
INDEX
418
PAGE
Deceased persons
discharged from personal obligations
in respect of
. .
257
. .
257-8
..
258
wrongs
rights of,
. .
. .
. .
258
succession to,
. .
. .
. .
. .
258
Declaratory law
definition of,
and signs
. .
60
210
. .
318
. .
of
law
Depositnature of
. .
. .
. .
. .
. .
Divorce
Force of then in a text relating to,
Reason why an interval of time must elapse in approved forms
in mistake
.
. .
. .
.
.
.
under coercion
husband has a right
. .
. .
..
be clogged
be major and sane
husband's right
may
husband must
strongly condemned
limitations on,
what
is
two kinds
irrevocable,
..
212
. .
225
'
230
23G
..
..
..
..828,335
..
..
..
..
. .
. .
. .
to,
..
..
..
. .
. .
. .
. .
. .
. .
336
.
. .
of
law
of,
336
337
. .
337
337
..
..
by Hanafis
335
335
..
328,334-5
333-4
. .
..
80-1
. .
. .
..
..
pronounced in intoxication
of..
. .
to,
talaq is of
in jest
. .
337
. .
337-8
see II.A.
Zihar
see
ZIHAR.
. .
. .
. .
338
. .
. .
. .
340
..
..
..
345
. .
. .
81
specified in jest
. .
. .
. .
230-1
327, 834
pronouncement
. .
of,
down by
for
jurists on,
ward
Dower
what
is,
proper
when
..
. .
. .
. .
. .
. .
. .
. .
..
..
..
..
..
334
..
..
..
..
334-5
. .
. .
. .
. .
335
INDEX
419
PAGE
Easement
different kinds of,
enjoyment
of,
272
281
. .
. .
. .
..
..
..
. .
. .
. .
acquired by prescription
.
lost by disuse
272
. .
^72
Embryo
has rights but no
liabilities
240-1
. .
..
..
..
..
. .
as to promote men's welfare
conflict between spiritual and secular purposes
must be such
of
..
146
147
148
. .
. .
. .
149
..
..
..
150,152
law
. .
. .
151
151
. .
. .
. .
. .
. .
152
. .
. .
. .
. .
153
. .
. .
. .
154
. .
. .
. .
154-5
must
152
156-7
. .
. .
. .
..
..
..
..
211
..
preparatory cause distinguished from,
for each injunction of law there must be an,
..
..
211,214
. .
. .
213
..
Equity (Istihsan)
recognized by Abu Hanifa
. .
. .
defined
and wider
in scope
. .
. .
. .
25
. .
. .
. .
164
when opposed
it
freer
. .
than analogy
to
an analogical
. .
. .
164
. .
. .
. .
164
of,
165
25, 165-6
. .
. .
166
. .
166
Evidence
human testimony
juristic theory relating to,
. .
. .
. .
374
. .
. .
375
. .
. .
376
. .
376
. .
377
..
377
. .
conditions relating to capacity of a witness
of a single witness, generally insufficient to prove a claim
woman's,
inferior to
man's
register of
men
..
..
competency
.
of rectitude to be kept
. .
. .
..
of
a witness
. .
. .
when
.
. .
377.3
373
INDEX
420
PAGE
and hearsay
direct
. .
presumptions regarding,
retraction of ,
of
one party
is
to be accepted
circumstantial,
documentary,
admission
must be unconditional
must not be under coercion or in jest
estoppel
Executor
duty to carry out testator's directions
acceptance by,
powers of Court in respect of,
all must act jointly except in urgent matters
can bequeath his office
315, 85
on
acts
Faith (Iman)
First postulate of
founded on
Muharnmadan Jurisprudence
human
reason
what
it
consists of
. .
. .
Family law
in matters
opinion of jurists strictly followed
central idea in, is marriage
of,
Fatawa 'Alamgiri
compiled under the orders of Aurangzeb
conception
of,
same
. .
meaning
of,
. .
..
in all four
Sunni Schools
Forgetfulness
effect of,
on acts
. .
. .
INDEX
421
PAGE
..
223
. .
237
. .
. .
356
. .
. .
52
..
..
53
53
effect of,
God
the only lawgiver in Islamic system
promulgated laws through prophets
Muhammad is
acknowledgement
..
Qur'an
madan Jurisprudence
main
principle of law,
delegates power to lay
is
. .
51
52
submission to will
down
Muham-
laws, to the
. .
. .
53
. .
. .
53
..
..
344
..
..
344
. .
. .
344
. .
344
of,
community
Guardianship (Wilayat)
what
..
is,
..
..
of person
who
entitled to,
is
. .
345
,.
345
_.
362
. .
. .
. .
. .
. .
forms
..
..
..
. .
. .
352
. .
302
powers of guardian,
Hadd
in
..
of,
what
..
cases inflicted
Hadith (Precepts
meaning
of,
of the
.
Prophet)
. .
. _
17
. .
. .
. .
. .
17
. .
. .
. .
. .
ig
. .
. .
18
..
..
42
of,
351
God
Me day a
the foremost textbook on Hanafi law
..
Heresy
how far a disqualification for ijtihad
different kinds of ,
. .
. .
. .
. .
120
. .
. .
. .
j21
..
..
..
different grades of ,
. .
. .
. .
. .
250
. .
. .
251
. .
. .
. .
..
..
249
Miba (Gift)
whether delivery
defined
..
of seisin
..
is
necessary
..
for,
45
297
INDEX
422
PAGE
juristically treated as contracts
..
Musha
..
..
..
297
..
..
..
297
. .
298
. .
298
gift
See MUSHA.
in,
what kinds
scope of
of property
. .
299
299
. .
..
. .
. .
300
300
..
..
..
300
. .
301
..
..
301
. .
. .
301
..
. .
. .
. .
299
. .
..
. .
..
. .
. .
301
..
..
301
301
301
. .
301
. .
Hiba'bil
Ewad
Hiba'bi Shart
..
Ewad
il
. .
302
..
303
303
..
..
. .
. .
..
..
..
..
303
. .
. .
315
Hire (Ijara)
defined
..
..
and
..
..
. .
. .
317
. .
. .
316
. .
lessee
. .
317
. .
. .
317
. .
. .
. .
. .
317
. .
. .
. .
317
. .
. .
317
. .
82-3, 129
and sight
duties of lessor
..
. .
. .
316
..
. .
'Iddat
text relating to,
. .
meaning
..
..
..
. .
. .
. .
. .
. .
. .
245
. .
. .
. .
221
237-8
period of
of,
. .
. .
. .
. .
..
..
341
. .
341
Ignorance
effect of,
on acts
Of law
laid
down
Ij ma'
.
. .
. .
..
..
..
. .
. .
238
238-9
INDEX
423
PAGE
Of facts
a good excuse,
. .
. .
. .
239
. .
. .
See HIRE.
Ijara
its
origin of,
. .
. .
. .
. .
. .
. .
now
denned
. .
53, 115
. .
53
. .
. .
54
available
. .
54
..
..
..
..
..
115
..
..
..
..
..
115
116
..
texts in support of
..
..
..
. .
. .
arguments in support
..
..
..
..
. .
religion
..
..
..
of,
. .
qualifications of those
who may
participate in,
116
117
117
. .
. .
117
. .
. .
118-21
. .
. .
122
. .
. .
124
122
not confined to jurists of any age or country. .
conditions as to constitution of, . .
. .
how
is
far
..
unanimity of opinion essential to, ..
completed the moment jurists make unanimous declaration
..
124
125-6
. .
127
. .
one, may be reversed by another . .
arrived at by the companions, cannot be repealed
modes of constitution of,
. .
. .
..
..
128
. .
. .
130
number
..
..
133
may
..
..
133
. .
. .
. .
134
instances
proof of
of,
. .
. .
. .
. .
. .
. .
134
. .
. .
. .
135
. .
. .
. .
. .
135
See TAQLID.
..
..
..
..
168
. .
. .
. .
169
what
. .
. .
. .
. .
. .
338
. .
. .
338
..
..
..
..
..
338
. .
. .
. .
245
. .
. .
245
. .
. .
245-6
defined
..
Ila
is,
Imam
Iman
..
See CALIPH.
See FAITH.
Imbeciles
who
are,
. .
INDEX
424
PAGE
Imposts
are public rights
..
..
..
..
..
-201
Infant
what
. .
. .
. .
241-2
. .
. .
. .
. .
243
. .
. .
. .
241
. .
. .
241
..
..
..
..
241
obligations of,
acts of conduct
. .
. .
. .
242
243
..
..
..
. .
. .
243
243
marriage
243
of,
religious status of
change
of faith
. .
. .
. .
. .
. .
. .
. .
243
. .
. .
243-4
. .
. .
. .
244
by an,
Inheritance
in texts relating to, plural
or
more
survive
. .
. .
86
. .
114
. .
129
. .
. .
130
. .
. .
. .
345
. .
. .
. .
. .
346
..
..
..
..
..
346
..
..
..
..
346
. .
. .
. .
. .
346
. .
. .
347
i.
sharers
who
are,
. .
residuaries
who
iii.
are,
..
. .
..
..
..
347-3
. .
. .
347
. .
. .
. .
. .
348
. .
doctrine of return
distant kindred
who
are,
by acknowledgement
devisee
public treasury
exclusion from,
of relationship
. .
. .
. .
. .
. .
. .
348
348
. .
. .
348
. .
. .
. .
348
. .
348
. .
. .
. .
. .
348
. .
..
..
..
..
..
348
total or partial
. .
. .
. .
349
principles of,
. .
. .
. .
. .
349
349
rights of
International
Law
of
. .
INDEX
425
PAGE
of,
. .
. .
78
..
78
derivative, proper
..
..
79
79
80
..
81
. .
82
Grammatical
..
..
specific words
..
and generic nouns
..
.
absolute and limited words
. .
..
specific words establish absolute proposition
general words, cover everything to which they are applicable
.
of conflicting texts
. .
. .
way
. .
plural
. .
. .
. .
83
82
83
. .
83-4
. .
at least three
. .
. .
86
. .
87
. .
. .
87
..
..
..
88
statement
made
in
particular occurrence
..
. .
. .
. .
. .
..
generality of a proposition is to be taken into account
of absolute and qualified propositions with reference to the
same matter
..
..
..
..
. .
..
.
91-2
92
92
..
..
..
..
. .
. .
. .
93
. .
Tropical use, different kinds of
of legal expressions used in a secondary sense
. .
93.4
. .
. .
94
.
marriage . .
words expressive of legal effect used to denote the cause . .
Conditions as to giving affect to the secondary meaning
.
proper or tropical, to be ascertained from context and circum.
stances
. .
. .
. .
. .
. .
plain and allusive words
offences punished by hadd, to be established by plain words
formal writings regarded as plain
..
..
.
. .
. .
95
95
95-6
96
97
..
97
98
. .
98
..
98
..
Meaning of word*
may
may
89
90
Use of words
..
proper
secondary or tropical
3.
84
85
2.
78
..
classification of
. .
. .
. .
98
99-100
100
54
100-1
..
..
..
..
..
102-3
other things
103
..
of
\Q\
101-2
INDEX
426
PAGE
. .
. .
.
words
narrative form is more authoritative than originating form
of imperative
significance of
how
far
acts
may
. .
. .
. .
104
. .
. .
.
.
determined by goodness or badness of an act
be good or bad per se or with reference to something
intrinsic or extrinsic
. .
105-6
. .
106-7
. .
..
..
..
acts prohibited as bad per se are void
acts prohibited as bad with reference to some quality are valid,
. .
but vitiated
.
. .
. .
. .
.
abominable
and abominable
valid but
vitiated
. .
acts, parties
. .
104
104-5
108
108
are
...
108
108
..
108-9
. .
. .
. .
refer to meaning or operation
. .
explanatory, amending or repealing
amending or repealing, can be only by texts of Qur'an, or con..
..
..
tinuous or well-known tradition
109-10
..
Authentic
may
is
by way
of necessary implication
. .
110-11
. .
114
. .
110
Intoxication
effect of,
on acts
..
Islamic legal
..
.
..
..
..
. .
. .
. .
. .
226,228
337
system-
. .
of,
.
..
. .
1-2
16
. .
and
whether progressive
. .
artificiality in,
.
explained
. .
. .
39-41
191-2
Istadla'l
a form of juristic deduction according to Malik
defined
......
of three kinds
..
166
167-8
..
Insolvent
who is,
compulsory sales of property of, . .
Qadi when to pass prohibiting order
restraining alienation by
. .
246
Intention
defined
..
vitiated,
when
220-1
..
. .
220, 226
..
22 1
INDEX
427
FAGS
whan
effect of
. .
. .
. .
221
. .
. .
. .
222
an act
. .
. .
. .
223
..
..
..
..
223
..
..
..
..
293
. .
. .
293
..
Istisna'
what
..
is,
legality of,
is
Jest (hazl)
defined
. .
. .
. .
. .
. .
. .
. .
in,
in,
proofs
228
. .
229-30
. .
230
230-2
. .
. .
. .
..
..
..
..
232
232
. .
. .
337
..
..
271-2
. .
in,
Joint ownership
incidents
of,
..
..
..
. .
. .
. .
. .
. .
Jurist (Mujtahid)
meaning
of,
qualifications of,
left to
how
. .
. .
. .
. .
. .
122
..
..
131,133
. .
173-4
182-3
. .
120
120
. .
. .
ng
lig, 169-71
. .
of,
of,
. .
. .
183
. .
. .
. .
J85
. .
. .
1879
Juristic deduction
a source of law
. .
. .
. .
. .
.
authority of, is merely presumptive
not to be acted upon, if in conflict with revealed law or Ijma*
occupies same place as judge-made law of the English system
whether allowed at the present day
. .
. .
.
64
. .
54
. .
65
. .
55
. .
174-5
. .
. .
52
..
..
190
..
50
...
51
Kafir
literal
Law
meaning
of,
. .
. .
books
Law
defined
human
..
..
..
..
INDEX
428
PAGE
iman, the first postulate of,
origin of, a covenant between
. .
. .
. .
. .
to
power
function
of,
of,
to the
community
. .
. .
..
..
. .
. .
. .
. .
. .
. .
. .
. .
of
. .
52
. .
. .
imperishability of
61
. .
52
53
53
53
55
56
. .
56
56
57
. .
58
. .
Classification of
1.
2.
3.
4.
5.
6.
. .
and amending,
and private,
10. of persons
evidence
11. of
12. of procedure
..
14. international,
..
210
. .
62
. .
. .
62
. .
. .
. .
63
63
61
65-6
..
66
66
..
..
. .
67
67
. .
. .
. .
..
60, 193,
. .
. .
. .
13. constitutional,
. .
repealing
9. public
. .
..
..
7. interpretive,
8.
. .
perfect
67
. .
68
Sources of
1.
revelation
is
the primary
in the very
words
. .
of
God,
is
Qur'an
. .
. .
53,
69
. .
53,
69
. .
53, 69
. .
. .
70
70
3. Juristic
1.
purpose
of,
conflict
Laymen
148
..
('Ami)
Lease
See HIKE.
Legal capacity
of
embryo
and
receptive
active,
r religious
learning
. .
172
INDEX
429
PAGE
. .
person of
..
..
..
full,
218
. .
. .
circumstances affecting,
. .
. .
effect of
. .
. .
. .
. .
f orgetfulness
on,
. .
fainting on,
. .
. .
. .
..
..
..
coercion on,
fraud on,
224
224
. .
mistake on, . .
intoxication on,
jest on,
218
219
..
sleep on,
225
225
226-8
..
..
..
..
immaturity or defect
. .
. .
. .
in
228-32
232-7
237
understanding on,
. .
. .
. .
. .
. .
. .
ii37-8
239
2409
See INFANTS.
Infants
Lunatics
Idiots
218
. .
See LUNATICS.
See IDIOTS.
Insolvents
Unqualified professional
Slaves See SLAVES.
men
246
. .
Non-Muslims
Heretics
See NON-MUSLIMS.
See HEBESY.
Deceased persons
See
DECEASED PERSONS.
Legal History
First period
called the legislative period
revelation of the Qur'an
is
the precepts
. .
. .
. .
. .
16
. .
. .
. .
. .
. .
17
. .
. .
. .
17
..
..
..
19
. .
20
. .
22
. .
23
. .
26
..
33
34
Second period
collections of the
Qur'an
..
commencement
of the
Third period
foundation of the Sunni Schools of law
codification by
'
. .
his disciples
. .
the science of its interpretation
Fourth period
completion of the work done by the founders of the four Schools
. .
age of commentators and annotators
writings on usul or science of law
.
administration of
35
. .
36
See ADMINISTRATION OF
Court*
INDEX
430
PAGE
Limitation
validity of rules of, recognized by
..
old theory of,
modern lawyers
..
..
. .
. .
192, 374
..
..
374
Lunatic
Legal capacity
nation
same as
the
of,
..
..
of
..
..
Maintenance
and child
of wife
of children
is
obligatory
of poor relatives
of
343-4
Malik Ibn
101
. .
..
Anas-
. .
. .
Abu
.
. .
27
27
Hanifa's
27
. .
attached a prepondering weight to usages of Madina
recognized the principle of public welfare (Muslahat) as a basis of
deduction
recognized also Istidlal as a source of law:
Marriage
contracted on condition that there shall be no dower
use of expressions of sale or gift in a contract of,
annulment
of,
146,329-30
..
.
. .
. .
146. 161
. .
329-30
for,
guardianship
in jest
minor
agency
in,
. .
theory of
founded on contract
,
may
be extended by contract
cannot be contingent
cannot be limited for a time
how
contracted
temporary obstacles
capacity to contract,
..
.
. .
to,
..
. .
. .
..
..
. .
332-3
conjugal rights
wife's proprietary rights not affected by,
wife's rights
. .
. .
334
INDEX
431
PAGE
. .
. .
338
340
. .
341
born in wedlock
Mesne
profits
whether recoverable
payment
. .
. .
. .
of,
. .
. .
. .
. .
143, 162
360
Mines
Rights of State
. .
in,
. .
204
Mortgage
Motive
defined
how
. .
. .
. .
an act
. .
. .
222
. .
. .
222
Muhammadan
law
officers
Indian Courts
Fatwas
of,
who
..
..
..
Muhammadan
..
37
38
...
law
Muhammadan
Origin under
what
it
. .
. .
encouraged by Abbasides
whether, was influenced by
discusses,
. .
Roman
jurisprudence
. .
law
is
personal in
its
application in,
. .
. .
22
. .
22
. .
23
. .
49
. .
. .
54
..
..
54
. .
59
175
Muqallids
Who
..
are,
..
..
..
..
Murder
punishment for,
compounding of,
. .
. .
. .
. .
. .
. .
. .
. .
blood-money
..
for,
..
..
203
203
210
..
Musha'
doctrine
meaning
gift
f,
waqf
of,
of,
of,
. .
. .
. .
46, 298
298
. .
298
. .
308
INDEX
432
PAQE
Muslims
application of Muhammadan law to,
.
divided into sects
.
is
. .
personal
. .
duty
duty
war
of,
in case of
of,
residing in a
. .
non-Muslim country
249
250
..
. .
19,
251
313
..
..
..
of,
59
. .
. .
. .
. .
. .
. .
. .
394
397-8
..
..
..
221
Negligence
defined
..
..
..
Non-Muslims
.
Application of law to, is entirely territorial
Secular portion of the legal code applies to,
59, 251,
cannot participate
in
Ijma'
..
..
163
. .
. .
248
..
..
..
..
249
. .
. .
249
..
252
defined
118
..
..
259
59, 253
. .
. .
of
property
applies to,
may make
. .
..
..
. .
. .
..
304
..
392
392-3
394
..
Novatio (Hawalat)
Nature
of,
..
Nuisance
What is,
..
..
..
..
..
..
-.
289
..
..
321
270
..
..
Obligationsarising
by implication
of
law
. .
.
. .
. .
. .
207
. .
. .
Discharge
207
. .
207
. .
. .
. .
. .
. .
207-9
208-9
210
97,
103
INDEX
433
Ownership (Milk)
wider than
'
'
proprietary right
262
262
defined
Objects of, .
Incidental rights
262
of,
may
be suspended or curtailed
271
Sole or joint,
271
of usufruct ..
279
Acquisition of
Original,
..
. .
280-1
1,2
323
Conditions
of,
Different kinds
323
. .
. .
. .
323
323-4
of,
324
324
324
324-5
is
a trustee
324
325
of,
Paternity
Muhammadan Law
of,
341-2
342
342
Acknowledgement
What
it
consists in
Conditions
342
of,
.
343
343
of,
Pledgedefined
318
What
of,
319
319
319
Rights of pledgee
Responsibilities of pledgee arid pledger
Remedies of pledgee
Power of sale of pledgee
319
319-20
320
Person
legal capacity of,
juristic,
LEGAL CAPACITY
See
whether recognized
..
217-8
218
Procedure
Qadi
to decide cases
is
effect of
testimony
55
. .
364
. .
364
INDEX
434
PAGE
down
rules laid
as to conflict of testimony
. .
. .
. .
. .
. .
364
. .
805
365
..
365
365
..
. .
claimdefined
..
..
..
plaintiff
who may
..
..
..
365
..
..
..
365-C
prefer,
. .
. .
. .
. .
366
rules regarding,
..
..
..
..
..
366-7
. .
. .
. .
. .
. .
. .
. .
. .
367
3678
368
may
be verbal
must
disclose a
367
367
parties
joinder
of,
. .
is
. .
entitled to sue
. .
. .
. .
. .
right of sharers in specific property
right in respect of public or common property
. .
. .
. .
. .
368
..
..
369
. .
. .
369
. .
. .
369
. .
. .
370
hearing
must be
ex-parte proceedings
reply by
way
of avoidance
oath of defendant
suit
may
. .
where defendant
resides
. .
.
. .
370
. .
. .
373, 371
. .
. .
370-1
. .
and witnesses
beyond jurisdiction
. .
reside
decrees
defined
..
binding on
may
whom
..
..
..
..
..
371
..
..
..
..
..
371
372
review
of,
execution
of,
. .
limitation
..
..
. .
. .
. .
. .
. .
. .
372
. .
. .
. .
. .
372
. .
. .
. .
373
..
..
..
..
374
Property (Mai)
Different kinds of ownership in,
..
..
..
..
2G2-8
defined
..
..
..
..
'263
. .
..
..
263
. .
. .
. .
264
264
..
..
..
..
..
..
air
..
..
..
..
..
..
264
fire
..
..
..
..
..
..
264
. .
. .
. .
. .
. .
..
. .
..
..
wild grass
water
..
common
banks
pasturage or forest
of large rivers
..
. .
265
266-6
..
..
266
. .
. .
2C6
INDEX
435
PAGE
..
public roads
..
..
institutions dedicated to public
. .
Most objects of nature may be,
. .
Res nullius Qpen to use of all, till turned
into,
1.
and
2.
similars
3.
Extent
dissirnilars
..
. .
. .
2 66
__
266
267
267
. .
267
268
..
. .
. .
268
. .
. .
268
. .
. .
269
and enjoy,
..
..
..
..
..
270
..
Possession
what
is,
..
actual or symbolical,
of a licensee
. .
276
2 7G
-,,
illQ
. .
.
..
..
277
277
....
all
.....
complete or incomplete
+ T
t
276 . 7
in wrongful,
may
of
276
..
..
277-8
..
378
^Q
" "
..
io
&to
" *
*_
0170
O"*7
**
Musha
279
Arab Society
own
chief
Procedure in
3
3
settling disputes
adduce proof
oath absolves from
liability
plaintiff to
Punithment
principle of, is retaliation
for theft
..
for adultery
among Jews
..
Marriage
four kinds of,
temporary or muta
woman not a free agent
prohibited degrees
in,
of,
INDEX
436
I'AGIE
right to give
..
..
..
away
polygamy sanctioned by usage, prevailed universally
status of children not determined by,
in,
..
. .
. .
. .
11
. .
. .
Dower
formed
part- of
marriage contracts
. .
device to evade,
payment of, enforced by public opinion
is a charge on the husband's estate
. .
. .
..
..
16
Divorce
..
..
..
..
..
10
. .
. .
. .
. .
. .
10
Effect
..
..
..
..
..
11
..
..
..
..
..
11
..
..
..
..
II
..
..
..
..
11
..
..
..
..
11
. .
Effect of,
..
of,
Period of 'iddat
Adoption
a legitimate mode of affiliation
generally effected by contract
no restriction as to age of child,
..
. .
. .
..
..
..
..
..
..
..
..
11
12,15
Infanticide
female, prevalent
..
12
Property
consisted mostly of chattels
Slaves were valuable, . .
. .
. .
. .
12
. .
. .
. .
. .
12
No
and
. .
. .
12
..
..
..
12
. .
. .
. .
13
..
..
..
..
13
..
..
..
. .
14
..
..
..
..
14
. .
. .
IS
self
acquired,
..
Lease
for long
Kinds
terms
of,
unknown
...
Usury
common among
. .
. .
. .
15
..
..
..
15
..
15
. .
15
..
15
. .
16
among
heirs
. .
. .
16
. .
. .
. .
16
..
16
. .
16
..
Wives, sisters and mothers, were not heirs ..
dower and maintenance of widow, a charge on the estate
INDEX
437
Pre-emption (Shufa')
demand
in jest
of,
..
effect of
when
ignorance of sale
the tight of, arises
persons entitled
..
..
232
. .
. .
. .
232
. .
. .
. .
273
. .
. .
. .
. .
273
. .
274
..
in,
to,
..
among Hindus
recognized
in
. .
275
. .
275
. .
. .
275
..
..
281
. .
281
. .
Muhammadans
some places
as a
274-5
. .
. .
custom
Prescription
recognized, only in regard to easements
as the effect of rules lor limitation of suits
..
. .
Public good
Maliki doctrine
of,
. .
. .
166
Qadi
..
..
..
appointed by Urnar
powers not distinctly defined at first
free to make deductions in matters of juristic law
. .
. .
absolutely bound to follow texts and Ijma' . .
should set aside wrong decree on a question covered by 'Ijma'
how to decide a point of juristic law
. .
first
..
. .
decree
merely
of,
settles disputes
. .
rules guiding
duty of, in matters not covered
powers
of,
curtailed
by Ibn
between parties
..
. .
. .
by text or Ijma'
Hammam
Corruption
of, led
Appointment
woman may
of,
be,
to doctrine of Taqlid.
..
.
of,
holds
duties
duties
. .
61
. .
64
..
64
. .
179
. .
179
..
of,
..
..
..
..
181
. .
See TAQLID
. .
. .
182
..
..
190
..
..
389
389
. .
..
..
..
..
389
. .
. .
. .
389
. .
. .
390
. .
. .
. .
. .
390
..
..
..
..
390
..
..
regard to minors and lunatics ..
in regard to administration of the estate of deceased
390-1
of,
..
. .
. .
..
..
..
..
..
..
391
See ANALOGY.
examples
179
179
180
. .
of, in
persons
172
. .
..
. .
..
..
21
'
decision of a case by, does not determine the law on the point
to consult or refer to writings of jurists when not himself one
21'
. .
..
25
160-3
INDEX
438
PAGE
See INTERPRETATION.
Qur'an
meaning
..
of, ..
..
..
is
how
. .
- .
preserved
17
..
is
16
..
. .
. .
33,
70
19
..
..
..
19
jurists
..
..
33
..
..
..
53,69
..
..
71
..
71,114
113
what 'is,
..
..
..
and precepts
..
words
70
. .
..
Repealrules as to
examples
. .
. .
111-2
of,
of Qur'anic text,
113
114
Retaliation
sanctioned by ancient Arabic usage
confined within narrow limits
359
359
359
right to,
358
358-9
compoundable
. .
359
Revenue
sources of
384-5
. .
zakat
ear
marked
incidence
of,
jiziya
incidence
of,
385
the poor
385-6
386
'ushr
incidence
of,
/^lira/incidence
of,
386-7
386-7
Riba
41
doctrine of,
the "text regarding
of food
application of, to articles
effective cause of,
meaning
151
294
of,
. .
99
144
of,
294
INDEX
439
PAGE
of,
practice
among
of,
. .
...
jurists
and
294
in
.
. .
294
of,
absolute equality in
by Hanafis
. .
similars of weight
all
. .
. .
. .
. .
and capacity
insisted
. .
. .
. .
. .
means devised
. .
and
294
on
silver
. .
295
295
295
Muhammadans
. .
..
. .
..
295
296
are the
meaning
God
. .
56
..
57
.,
..
..
..
57
..
..
..
201-3
..
private,
public, classification of,
. .
..
..
and
public
function
its
..
..
..
of, ..
and substitutory
. .
. .
203-4
. .
. .
. .
204-5
205
. .
. .
..
..
20G
according to subject-matter
to do lawful acts
..
. .
. .
206
..
..
..
. .
. .
. .
original
origination, transfer
. .
..
and extinction
of,
. .
. .
206
210
289
Sale (Bai)
Validity of a contract of Salam,
..
..
..
..
145
. .
. .
. .
. .
in jest
. .
. .
Option of buyer
Gross inadequacy
defined
. .
of price, vitiates,
..
..
Mere
..
. .
. .
208
229
. .
. .
286
. .
. .
. .
286
..
..
..
290
. .
. .
290
..
..
290
. .
. .
291
. .
rights cannot be subject of . .
Different kinds of, in respect of subject-matter
,
Conditions relating
to,
. .
..
..
291
. .
. .
291
See SUBP.
effect of a valid,
. .
. .
cot
of
. .
. .
. .
. .
. .
296
..
..
296-7
..
conveyance and registration
things, includes all accessories and appurtenances
of
revocation
of, for
what causes
296
. .
. .
..
297
. .
297
..
..
290
. .
. .
292
..
. .
Salam
Meaning
of,
..
Price in,
must be paid
at time of contract
..
..
.
INDEX
440
PAG a
Date
of delivery in,
of animals,
must be
whether valid
Seven conditions
laid
..
..
..
292
..
..
..
292
. .
. .
. .
292
..
..
58
fixed
..
Sanction
of
law in
Muhammadan
Separation (Furqa't)
How
effected
Effect
..
of,
. .
. .
. .
. .
..
..
..
..
..
339
339
. .
. .
. .
339
. .
. .
28
. .
28
. .
. .
29
Shafi'i
. .
.
. .
the pupil of Malik
took a middle course between Malik and Abu Hanifa
allowed greater scope to Ijma' than Malik . .
.
of,
source of law
29
..
..
..
29
..
..
..
29
fifth
Disciples
and Madras)
..
..
..
..
Bombay
..
29
See PRE-EMPTION.
Shufa'
Literal
meaning
of,
Sign (A'lamat)
What is,
..
. .
. .
. .
. .
272-3
..
..
..
..
216
. .
. .
. .
21G
. .
. .
. .
216
. .
. .
208
209
SlanderCompounding
of,
. .
. .
SlaveEmancipation
Emancipation
of,
of,
by fraud
under coercion
of,
..
. .
. .
..
. .
. .
. .
..
..
..
23G
. .
. .
246
..
Right
of, in
..
. .
247
247
. .
247
. .
..
..
247
247
man
. .
247-8
..
..
248
..
..
..
248
. .
. .
248
. .
. .
248
. .
..
. .
..
INDEX
441
PAGE
SleepEffect
on acts
of,
. .
. .
. .
. .
224
Sovereignty
primarily bti 3nged to God
delegated by God to the people
Powers
of,
. .
. .
. .
. .
. .
. .
. .
. .
. .
60
60
60
5unni Schools
four in
number
..
..
..
..
. .
. .
23
23
. .
. .
. .
23
. .
. .
. .
regarded as followers of a middle course . .
far the doctrine of taqlid might stereotype the differences
Followers
How
..
. .
of,
..
among, ..
..
Agreement among,
Follower of one, whether
cular cases
..
..
free
..
..
23
32
..
..
32
..
..
174
to
. .
. .
. .
. .
177-8
. .
. .
. .
. .
290
Surfof
Meaning
. .
..
..
Equality in bargain essential in,
Delivery of both articles must be at the time of contract
Strict conditions of, result from the doctrine of riba
..
..
293
293
293
320
..
. .
Suretyship
what
it
consists in,
..
. .
objects of , . .
may be conditional or contingent
effect
on
liability of surety, of
..
..
..
..
. .
. .
. .
320
..
..
..
320
..
..
821
concession to principle
Taqlid
meaning
of,
. .
. .
. .
171
. .
. .
. .
171
. .
. .
. .
172
. .
. .
. .
175
. .
. .
. .
178
183
on classification of jurists
conceded rank of Mujtahids to three classes
of
modern
effect of,
interpretation
Observations on,
lawyers
. .
. .
of,
. .
. .
. .
188
..
..
..
..
..
190-2
..
..
. .
..
351
..
..
..
351-2
..
..
..
352
..
..
..
..
353
. .
. .
353
liability for,
..
of liability for,
..
..
..
..
853-4
contributory causes
..
...
..
..
354
56
..
INDEX
442
PAGE
acts in the ordinary exercise of rights,
. .
acts wrongful in themselves . .
when
. .
contributory negligence
See COERCION.
liability for coercion
remedies
..
354-5
. .
354-5
. .
356
. .
. .
. .
. .
..
..
See FRAUD.
.
for,
358
See RETALIATION.
retaliation
compensation
scale of
..
360
restitution
of
two kinds
of
HI-SIM'
profits
when improvements
are
made by usurper
Traditions
not collected by the authority of the State
versed in, were not necessarily jurists
men
mode
of teaching,
teachers
. .
.....
of,
of,
31
four schools
31-2
..
. .
..
. .
..
. .
. .
. .
..
..
71
..
72-3
74
ought to contain,
of,
. .
objections to,
mode
30
. .
draw the
..
..
together
collectors of,
genuineness
. .
of transmission of,
. .
76
Trust.
by express contract
by creation of law
Duty and responsibilities
. .
Deposi tee
is
a trustee
. .
of trustee
..
Umaiyad dynasty
of caliphate to Damascus
Muhamraadan jurisprudence began under,
removed seat
Study
of
Urf (Usa#e)
Authority
of,
recognized by
Usufruct
Ownership
of,
..
Abu Hanifa
See CUSTOM
..
113
INDEX
443
Usu'l (principles)
Shafi'i
was
defined
first
writer on,
..
..
..
..
..
29,36
..
..
..
. .
. .
33
33
. .
33
..
..
science
cf,
. .
main
. .
. .
objects of,
the four great teachers agreed in the
main
Wahabis
33
. .
. .
. .
. .
. .
34
. .
34
. .
. .
36
. .
. .
36
theories of,
. .
. .
when
See AHLUL-HADITH.
Waqf
interpretation by jurists of texts relating to, for donor's family
. .
47, 91
177
. .
opinion of Ghairu Muqalids
property which may be dealt with by,
..
basis of the institution of,
..
..
..
287
defined
..
..
..
303-4
304-5
305
..
..
..
..
objects of, ..
application of Cypres doctrine to,
..
scope of
. .
..
..
Musha allowed
creation of,
. .
. .
. .
267, 307-8
..
..
..
..
..
..
..
..
..
..
..
..
..
. .
. .
. .
. .
..
..
..
..
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
..
..
..
..
..
revocability of,
repugnant conditions in, fail
. .
. .
of,
. .
. .
. .
. .
. .
305-6
305-
306
306-7
308
308-9
309
309-10
309-10
..
..
310
. .
. .
345
WaterRights
to,
. .
use of
and
rivers
.
. .
. .
. .
. .
. .
265
265
. .
. .
265-6
. .
. .
. .
290
290
WayRight
of,
can be sold
..
..
..
..
..
..
..
..
..
..
220
..
Willdefined
Zihar..
..
..
..
..
338
..
..
..
..
..
338
effect of
. .
. .
. .
. .
. .
338
whatis,
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