Professional Documents
Culture Documents
Muhammadan Law
Muhammadan Law
"
13/w,
THE PRINCIPLES OF
MUHAMMADAN
'
L
JURISPRUDENCE
BY
JUDICATURE AT MADRAS
" *
MADRAS
VEPERY,
C. K.
PRESS,
8. P.
1911
1911
ERRATA
48. For ' which is the science of the material law of the Muhammadans'
"
"
"
cause'.
"
'
170, line 2." For '
passed read '
possessed '.
"
,,
'
187, line 12 from bottom." for 'some Patwa read '
some, Fatwa'.
"
,,
,,
"
commentary '.
"
,,
N.B. In several Arabic words, ending with j$ superfluous has been added at the end
"
a j
Muhammadan Theology.
or the
of Sadru'sh-Shari'at's '
Taudih
'
which was written sometime in
Al-Mukhtaaar
'
the Muhammadan legal code, under its several heads, its peculiar
features. These theories and principles are to be found spersed
inter-
seldom road with any care that I felt I should not be justifiedin
counting on the possession of that quantum of knowledge of its
who are only conversant with the modern forms and modes of
European language.
In spite of the shortcomings of this treatise, I hope that it
its science, wish to understand the true basis 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 the four Schools of law specified in the
the world.
Press and Author of the ' Faith of Islam ', who was kind enough to
A. R.
Madras,
May 1, 1911.
CONTENTS
* CHAPTER I page
SYSTEM 1
... ... """ """
section i "
customs and usages of the arabs before
Islam
CHAPTER II
LAWS 48
CHAPTER III
SOURCES OF LAW
... ... """
69
II "
INTERPRETATION 77
" ... ... """
HI "
PUBLIC GOOD 1G0
...
V "
IJTIHAD AND TAQLID 168
" ..
CHAPTER IV
B
x CONTENTS
CHAPTER V PAGE
CHAPTEK VI
OWNERSHIP 261
POSSESSION 275
CHAPTEK VII
ACQUISITION OF OWNERSHIP
CHAPTER VIII
CHAPTER IX
TORTS 351
CRIMES 361
CHAPTER X
CHAPTER XI
CHAPTER XII
INDEX 412
LIST OF ORIGINAL AUTHORITIES
REFERRED TO OR MENTIONED
Al-IIawi.
Al-jami'ul-kabfr.
Al-jami'u's-saghir.
Al-kafi.
'Al-khulasa.
Al-mabsut.
Al-majma'a'.
Calcutta).
Al-muhurrar.
Al-muhit.
Al-mukhtar.
Israr).
Al-waqi'at.
Adh-dhakhira.
An-nahar.
As-siyaru-1-kabir.
As-siyarus-saghir.
Az-ziyadat.
Muhtar).
xii LIST OF ORIGINAL AUTHORITIES
Duraru'l-Bahiya (seeRaudatu'n-Nadia).
Patawa 'Alamgiri(Calcuttaedition).
KatAwa-Rashidud-din.
Jatniu's-Saghir.
Jain'u'l-Jawami' (printed on the margin of Al-Ayatu'lBayyanat).
Jurjaniyat.
Kanz (printedon the margin of Bahrur-Raiq).
Kasbfu'l-Ghumma (Egyptian edition).
Kashfu'l-Israr (see Al-Asiil).
Kashshaf-fi-Istilahi'1-fanun (Calcuttaedition).
Khazanutu'l-muftaocn.
PAGE
330
130) ... ... -
- -
310
Ata-ullah v. Azimu-llah (12 All., 494) ... ...
308
(31 Bom., 250) ... ... ...
Baquar Ali Khan y. Anjuman Ara Begum (25 All., 236) ...
46, 309
44
551) ... ... ... ... ...
38
Bikani Mian v. Sukhlal Poddar (20 Cal., 116) "-.
311
Bom., 497) ... ...
."" """
66) 307
Fatima Bibee v. Ariff Ismailjee Bham (9 C.L.R.,
271
255"G
P.C.) ... ...
...
"""
256
Ibrahim Gulam Ariff v. Saiboo (35 Cal., 1) ...
...
PAGE
344) 38
... ... ... ...
...
255, 307
499) ... ...
... ... ...
301
431) ... ... ... ... ...
P.C.) 298
... ...
... ... ...
460) 46
... ... ... ... ...
Mulik Abdul Ghaffur v. Mulika (12 Cal., 1112) 42, 298, 300
them l
therein.' In commenting on this passage,
Ibn Hammarn remarks :
'
There is a clearer authority
in favour of legality of partnership than certain tions,
tradi-
BEFORE ISLAM
' '
Hedaya', vol. v, p. 377.
2 '
Fathu'l-Qadfr ',vol.;v, p. 377.
3 "
Tafsfr-i-Ahmadi", p. 18.
I'RIU-ISLAMIC CUSTOMS 3
u-ilU-l).
If the culprit escaped alive and took refuge
Ml IIAiMMADAN JURISPRUDENCE
offence
tribe of the deceased were entitled to demand that
to extort a confession.
Oaths Oaths formed an important part of the procedure
in settling a dispute. An oath was held in great
reverence, not merely as an inducement to speak the
force :
'
( 1) A form of marriage which has been tioned
sanc-
saying :
"
You know what has happened. I have now
i '
Kashfu'l-Ghumma', vol. ii,pp. 105-G.
8 MUHAMMADAN JUKISPBUDENCE
house.'
assign any reason for its exercise, nor was he under the
Talaq word commonly used for this purpose was talaq ( ""illr
) -
Ha" form of divorce in use among the Arabs was ila' (*I"))j
the husband swearing that he would have nothing to
back).1
The wife among the Arabs had no corresponding
right to release herself from the bond of marriage.
But her parents by a friendlyarrangement with the
husband could obtain a separation by returning the
dower if it had been paid or by agreeing to forgo it
if not paid. Such an arrangement was called khula' Khula'
(*Ji-)
lit. stripping, and by it the marriage tie
year.
The status of a child was determined not merely by Legitimacy
marriage, but also as may be gathered from what has
public property.
With the exception of a slave who himself was the
remedy.
The positionof an infant or a non compos mentis was
i '
Tafsir-i-Ahmadi ',p. 610.
PRE-ISLAMIC CUSTOMS 13
inter a,henatlon
over his property. He could, by an act vivos,
alienate his entire interest by a sale or gift or only Different
f"rms
a partial or limited interest by lending, pledging or
of rflI (*
changing.
4. Sale in which the price was paid in advance,
the article to be delivered on a future date : this sale
8. Murabaha (*.^j|J"),
a transaction in which the
vendor sells the article for the cost price and certain
stated profits.
9. At-Tauwaliya ("SLa!^]"
sale at the cost price.
1 '
Hidayaj'and '
Fathu'l-Qadfr' (Egyptian edition),vol. vi, pp. 19-55 ;
and ' Kashfu'l-Ghumma ',vol. ii,pp. 6-7.
14 MUHAMMADAN JURISPRUDENCE
that when I repay the debt you will give back the
period.
19. 'Urbun (^S) ; in this sale the purchaser pays
for his share the crops that would grow on the portion
adjoining the stream or on some other specifiedplot.
The Arabs also used to farm out the fruit trees.1
riba or
and at least among the Jews of Madina usury was
f
usury
"
. 9 t
under the of riba -L"oans ot
lai n pant name (y^)-
articles by way of accommodation were designated
(Bulaq edition)
'
i An-Na\va\vi's Commentary on
' Sahih of Muslim
But Muhammad
preached Islam not merely
for the municipal government of the Arabs, but for
legality
was presumed. Similarly,if the Prophet ously
studi-
presumed that he
disapproved it.
The second When the Prophet died in June a. d. 632, the eleventh
period 0f ^Q
year Hijra, the task of the spiritualand worldly
government of the Muhammadan commonwealth volved
de-
The first and the most momentous problem that the Election
of tlie
community had to solve on the Prophet's death was
that of finding
"="
a successor to him as the head of the ^^JLj1,
executive
_
had no functions,
legislative for God alone is the lator
legis-
in Islam.
As the Muhammadan community was to be gov- Collection
Umaiyad were at the head of the State as Caliphs, they were not
not only for his rigid piety, but also for his tensive
ex-
Mu'tazila sect.
Its encour- With the fall of the house of the Umaiyads and
agement
by the accession of the 'Abbasides to in A. H.
power,
'Abbasides
132, a new impetus was given to the study of prudence.
juris-
The 'Abbaside Caliphs loved to patronize
learning and extended special encouragement to the
State.
Jurisprudence p
vogue about this time. To the students of comparative
jurisprudence it must be interesting to note the points
of resemblance between the rules of the Muhammadan
Abu Hanifa The teachings of Abu Hanifa acquired for him the
known
as the
title of 'upholder of private judgement' (JJ*",)
(i_?Ul
upholder of and his School of Law was distinguished by that
private
epithet. There can be no doubt that he was sidered
con-
judgement
by his contemporaries to rely less upon the
traditions in arriving at legal conclusions and more
known as
'
upholders of private opinion '. It would not
Khaldun observes :
'
Some prejudiced men say that
of opinion
should be confined to the companions cf the Prophet
and others would extend it to their successors, but no
'
'Urf or usage law. It is laid down in Al-Ashbah wa n-Nadhair :
'
, , .
at-Tai, Habban and Mandal were men of great reputa-
tion as traditionists, Zufar was noted for his power
disciples,
and their of deducing rules of law and Qasim ibn Nu'im
works
an(j Muhammad were great Arabic scholars. The
and taught and did all his work. In his time he was
course
noted for his balance of judgement and moderation
between
of views and though reckoned among the upholders of
Aba Hanifa
' '
i '
Mukhtasas of Ibn Hajib (vol.ii,p. 281) and ' Al-Mankhul of Imam
tionist and theologian his reputation stood very high, than aJurist
i '
Ayatu'l-Bayyanat ', vol. iv, p. 174.
'2 and
'
Al-Mankhul ', pp. 213-5 229.
3
Ibid, p. 189.
30 MCHAMMADAN JURISPRUDENCE
known as
'
Musnadu'1-Imam Hanbal', has now been
is much impaired.
The age of the four Imams produced other teachers
who had for some time a considerable following of
their own. Among them Sufyanu'th-Thuri and Da'iid-
called but
legislation, for lack of a definite machinery
for the purposes of collective deliberation, development
of laws through the agency of Ijma' has been slow,
uncertain and fitful. The only other means left of
law-
but it was not until the fourth century of the Hijra
that Usui began to be studied as a separate science.
(died
dini'l-Khariji a.h. 836). Of their writings those
'
that are ordinarily available and in vogue, Al-Usiil
'
Baiyinat
'
of '
Fathu'l-Qadfr ', is also a book of high authority on
Hanafi Usui, and '
Nuru'l-Anwar ', a commentary
on 'Al-Manar', by the author of '
Tafsir-i-Ahmadf,
'
and '
Musallamu'th-Thabut and its commentary by
Bahru'l-'Ulum are also commonly used in India. I
Means for
Since the services of the law officers wore dispensed
ascertaining with, two features, one closely allied with the other,
Muhammadan have been noticeable in the Anglo-Indian tion
administra-
law
of Muhammadan law. In the first place, the
'
the Prophet :
'
difference of opinion among the people
is the grace of God '.* As for the charge of artifi-
ciality
the position seems to be this : according to
1
^Baddu'l-Muljt"r ', vol. i, p. 50.
40 Ml'FIAMMADAN JURISPRUDENCE
enunciated whether
by the jurists, based on a formal and
literal interpretation of the texts, or on analogy, are
'
Persian commentary of the '
Hedaya especiallypre-
pared
for him. On doubtful points, therefore, it often
becomes necessary to refer to the original '
Hedaya ',
and its authoritative commentaries, in order to verify
... ,
tance on the part ot judges to adhere literally to
Admmistra-
marized. In the domain of law governing" domestic
tion of relations and succession, the courts have allowed
Muhammadan of if
themselves a much narrower margin freedom,
any freedom at all, in applying the rules laid down
in books written by mediaeval writers to the altered
circumstances of modern world than in matters ing
relat-
to dispositions of property, such as by gift, waqf
or will.
In the well-known case of Bazloor Buheem v.
1
Shumsoon Nissa Begum the Judicial Committee, in
i Moo. I.
11 A., 551.
MUHAMMADAN LAW IN BRITISH INDIA 45
remark :
'
They do not care to speculate on the mode
i 25 Cal., 9.
^ It was apparently not brought to the notice of the Committee
that the verse of the Qur'an which was relied on had been repealed
by another verse.
46 MUHAMMADAN JURISPRUDENCE
Khqjoorronissa v. Bow-
shan Jehan* Sir Robert Collier, in delivering the
i 2 Gal., 184.
' 11 All., 460.
3 35 Cal., 1.
* 25 All., 236.
MUHAMMADAN LAW IN BRITISH INDIA 47
'
In the judgement of this Committee delivered by
Lord Hobhouse, the danger was pointed out of relying
ancient texts of the Muhammadan law and even
upon
to be a new deduction ;
all that we are concerned with
courts.
CLASSIFICATION OF LAWS
scope
of Usulu'1-Fiqh, also called Tlmu'1-Usul, which,
jurists themselves.
of the sources or
authorities (i.e. of law) and what
which would not have been known but for the munications
com-
...,_.
1 '
Kashshdf fi istilahfl-fanun ',vol. i.,p. 31.
2 '
Taudfh' (Calcuttaedition),p. 14.
DEFINITION OF LAW 51
"
faith
"
i
"
e
or faith, the essential constituent of which is beliei
act J"*i)j
c"_^La!]
(fi'lu'1-qalb as contradistinguished from
tne ultimate
fact, the contrary view would, according to them,
lead to arguing in a circle, tor the truth or all. ,.
,.fi
revealed religions necessarily depends on belief in for law-
i See '
Taudih ', p. 418.
52 MUHAMMADAN JUKISPRll'KNCi;
"I reason.
jurists
of God's authority over their actions is
the covenant
literally,
or only as having a metaphysical significance,
serves to explain some of the ideas of Muhammadan
"f
earth from time to time through His messengers (rasul laws,
....
through
J.^.) and prophets (anbiya' Lmj'). This succession 01
prophets
revelations was partly necessitated by changes in the
Hadith
revelations from God to Muhammad, and Hadith or
it is
^ik)- and
'
is '
merely presumptive (zanni
ari"i
of customs and usages (c^ljlc , u. ix ,
J*oU5)in estab- U8ages
the case of those customs and practices which pre- The juristic
basis of
vailed in the time of the Prophet when revelation, the
law
definition, is to control and guide men's conscious
actions by creating restraint on their freedom. This
of law.
its law to
application to the Muhammadans, that is to say,
Muhammadans,
'
.
, . rr ii i.i ,-L l- a l- i
it is not affected by the constitution of a particular ^^0^1
political
society. This is because the authority of law,
according to the Muhainmadan theory, is primarily
based on men's conscience and not on politicalforce.
Thus, if a Muhainmadan goes from one State to
that, as lie was the chief ol' the executive and had
of sovereignty.
Sovei 1" the Muhammadan system sovereignty primarily
belongs to God, but as He has delegated to the people
powers of and
legislation of absolute control over the
or Caliph.
^u'{ "s now see now *aws are classified That part
Classification .
of disciplinarymeasures.
Keligious laws The jurists broadly divide laws having regard to
and secular
their purpose into religious and secular. In ming
sum-
unrevea e
the laws, some laws are revealed and others arc unre-
laWS
1 1 T l'l " "
i '
Talwfh', p. G93.
64 MUHAMMADAN JURISPRUDENCE
law,
juristic (""jLji"-!) while so far as laws based
based on juristicreasoning.
Strict and Another fundamental division of the Muhammadan
modified modified (rukhsat
jaws jg jnto strict ('azi'matLw ;") and
laws ""
[interpretation
by means of such rules is, however, to
undoubtedly law.
Repealing and There are some texts of the Qur'an, and the Tradi-
amending laws tions which have either bsen totallyrepealed, or their
(t"'.A*S] ; the
}*""-) former corresponding to rights of the
private law.
What is called law of persons relates, according to Law of persons
which exercise
property ', that is, things over
'
men
(Si"L-3")
or oral testimony, is a question of capacity of
the witness to create liability. On the other hand, the
with Procedure
and obligations. The Law of Procedure is dealt
magistrate.
MUHAMMADAN JURISPEUDENCE
law
generally dealt with in the textbooks in the chapter on
law
this system is the law defining the relations of the
SOURCES OF LAW
very
words of God, or (2) by hints, and (3) of such ^^on8
knowledge as
occurred in the mind of the Prophet
ayats (ci/jT)
or verses. The arrangement of the verses
between the
lies in the fact that the former contains the very
words of God, while the precepts were delivered in the mUr-f^'
Prophet's own language. One result of this difference
say
or six " which can be said to be so proved. The reason
collected.
The first and most important question, therefore, Rules for
" ,
De
'
well-known in that connexion hav-
(ma'riif t_j..x^),
well-known, or
did not see the light until after the expiry of the
and disconnected
whether the chain of narration is complete
,
traditions
_
r, jn
reaches the Prophel or not. Sometimes the absence
Hanafi doctors.
tradition
law may consider it disconnected and refuse to accept it a
as authentic because of certain informative circumstances.
qualifications,
or the tradition itself being of
occurrence.
'
do not conditions
reported such a tradition, the other being
satisfied, will be accepted by all the jurists, even
if its narrator was not versed in law. If the language
of the Prophet has not been preserved, some jurists
would not accept such a tradition majority at all. The
of jurists,however, are for accepting it, provided its
SECTION II "
INTERPRETATION
by necessity (bayanu'dh-dhariirat),is in
'
'interpretation
the case of the lawgiver and the expounders of law
to ascertain their intention with regard to what has
of words is indicated.
cJ ,!".,")" b
, ,
or instance,
,
the word 'spring may mean a
the sentence,
'
I saw men in the street.' When a
human being.
If the meaning of a noun be exactly that to which Derivative,
the word it is derived is and
root from which applied, proper
"eneric nouns
while retaining the original form, it is called a deriva-
tive noun (sifat "ujLc), such as the word murderer
it lays down ;
'
do not bring together under you two
sisters'. 'All was of opinion that the restriction with
it is
Suratu'n-Nisa'u'l-qasira laid down that the
period
Texts relating
to 'iddat of probation for pregnant women is until delivery. 'Ali
would reconcile the two texts, holding that the period
of probation for a widow who is enceinte is the
i 'Taudih', p. 33.
INTERPRETATION
general propositionmay
A be qualified in its opera- Qualification
of a general
tion, either by a clause which is not independent of it
... . .
., , , .
proposition
(J"Lj*oj1 ."c), or by an independent speech (JiLu^o).
If by the latter, the qualificationis called limitation
or (takhsis ^Jux-bS)When
specification the qualifying
1 'Taudih', p. 84.
2 'Talwfh', p. 79.
84 M 1 : 1 1A M M A 1)AN J UEISPEUDENCE
i
qualification s said to be by an independent speech.
Qualification A qualifyingdependent clause either introduces an
by a dependent
clause
exception (^LiuuuJ),
a condition (is.-i)
or a quality (ii.c)
says :
'
I will not eat meat ', he must bo taken to mean
word '
slave '
is not altogether appropriate in nexion
con-
with mukatabs.
i , i
limiting speech
ative, will be regarded as general only in a secondary
sense, and would not be treated as absolute. There is,
however, one exception to this ; when the limitation
i '
Talwfh ',p. 88.
86 MUHAMMADAN JUEISPEUDENCB
'
the word 'men or only in its application. If the latter,
then it may apply as meaning the entire body as a
dirhem \
'
the Imams (are to be selected) from the tribe of
the poor men, A would take half and the poor as a body
would take the other half. A determinate (mu'arraf Determinate
^J*c) plural
L
form, without the definite article preced- annd
J
'
' indeterminate
ing it,is in its legal effect like a general term. Thus, plural
sm"u f-r
(Jl),if it be not intended to indicate a specificobject,
produces the same legal effect as a general term, by the
For instance, the verse which lays down punishment
for thieves, namely, '
the male and the female thief,
etc.', is construed to apply to all thieves.
in its words
negative is also generic import. For instance,
in the Qur'anic verse: 'say (i.e. ask them) "Who
so ', means
'
I shall not beat any man and if I
says :
'
I will not keep company except of learned
learned men.
1 '
Taudfh ',p. 4G.
MUHAMMADAN JUEISPEUDENCE
art free ', and the woman thus addressed gives birth
to twins, one male and the other female, she will not
'
be emancipated, for by '
that which the speaker meant
'all that'.
and all
kull ("_)"=")
or
'
all '
are generic in their effect, so that
It may
anticipation.'3 be urged that, if a proposition
occasioned by the facts of a particular case were to
question.
It may be pointed out here that the interpretation
by the Muhammadan jurists,in accordance with this
1 'Taudfh', p. 55.
2 'Talwih,' pp. 121-2.
INTERPRETATION 91
extravagant.1
An absolute
The principleof interpretation applicablein a case
...
and a qualified
., ii,,,
where there are two propositions, one absolute ( iIL")proposition
witb- reference
and the other qualified(JaiU), is as follows. If what
also says :
'
Clothe a naked man.' In the first case there
'
to the same event one must fast for three
far as possible.1
Construction of A homonym when used in a proposition is to be
homonyms given only one of its several meanings, for it cannot
is wrong.
meanings i '
Taudih,' p. 57.
INTERPRETATION 93
its root
particular kind of intoxicating liquor, though
something which '
clouds
meaning, namely, covers or
it
thereby, it is called its meaning (ma'na ^-A*^)'if De
(musamma ^A).1
Sometimes a word may be tropical with reference Different kinds
In
speech (s.I*jLJ). the text which says,
'
He (God)
sends down from the heavens your food ', what
is meant is rain which is the cause of production of
food. Similarly when another text says: 'God will
well-known animal.
A legal expression is also sometimes used in its
Legal
proper sense and sometimes in a tropical sense. In
expressions
used in a such cases also, there is a common element ing
connect-
proper or
the two meanings. That common element may
secondary-
be the reason underlying the two transactions in
sense
connexion with which a legal term is used in its
the legal effect. For instance, according to the Hanaiis, Use of figurative
husband expressions in
marriage creates a sort of ownership in the
to be
the application of our judgement, or experience, or
to write or not.1
III. The meaning of a word in a passage or sentence
The meaning
of words
may he disclosed or concealed. When it is closed
dis-
be manifest
may the word is said to be apparent or
manifest,
of meaning (zahir ytll?)
3 if it is still further disclosed
explicit,
unequivocal, by means of the context, it is regarded as clear or
or fixed
explicit (nass "_^J)3if it is so clear that there is no
1 '
Fatawa Alamgiri (Calcuttaedition),vol. i,pp.
'
533 4 ; '
Hedaya ,
Qur'an, '
so the angels prostrated themselves all of
them ', the meaning is regarded as unequivocal. A text,
the meaning of which is unequivocal, is not capable of
being restricted or limited in its application though it
may be repealed.
If the meaning of a word be concealed by reason of The meaning
an extraneous circumstance, it is called obscure (khafi mav t"e
obscure
(..i.i-)-If a word be obscure of meaning in itself,aiffiCv,it'
but is capable of being understood by the applicationvague or
the new word imports some deficiency. The verse of The text
regarding riba
the Qur'an, '
and God has prohibited riba ', is vague,
100 Ml IIAMMADAN JURISPRUDENCE
Absolute or
A text is said to be absolute (qata'i ^xLi')in two
certain text
senses : first,when precludes all possibilityof doubt
it
Such
.s-lUlrfUpJ)- expression of meaning may be
A man says :
'
Emancipate your slave on behalf
my Necessary
for one thousand rupees '; it necessarily implies as a implication
condition precedent that the owner should sell the
slave first to the speaker for a thousand and
rupees,
then emancipate it as his agent, because a man cannot
law, since the words actually used were in the past tense,
and not in the future, and, therefore, so far as such words
with
particularmatter, it does not, according to the Hanafis, respect
such aPPllcation
as, declaring an act to be obligatory, forbidden,
"
i i j a i i -,
Sive rise to
permissible, and so on. A law may be expressed commands
in such a form that truth or falsehood cannot of law
says:
'
do this', or 'do not do that', or in tin
writing '
is construed to recommend the recording of
transactions and not to make it obligatory, in other
-
with that of the Mu'tazilis with certain vations.1
reser-
than substantial.
An act be good or bad per se, or it may be
Acts good or
may
bad per se, or good or bad with reference to something else, which
with reference
again is good or bad per se. If the latter, that thing
some-
to something
to which the act in question refers, may be
else
either a part of it or extrinsic to it. When it is part
110 M I 1 1A M
texts
text, it may involve a change in its application
or it, may not. When interpretation involves no
by fixing it beyond
(taqrir .jytf) the possibilityof its
Both the Both the repealed and the repealing texts must be
i See '
Tafsfr-i-Kashshaf ', p. 124.
2 See '
Tafsfr-i-Ahmadf \ pp. 154, 242-3 ;
'
Tafsfr-i-JakUain ',p. 35 ;
" Tafsir-i-Kashskaf ', p. 103.
114 MUHAMMAD AN JURISPRUDENCE
Authentic
Authentic interpretation by the lawgiver may also
following : "
'
My followers will never agree what is
upon
wrong.'3
'
It is incumbent upon you to follow the most
numerous body.' 4
'
The (protecting) hand of God is over the entire
span will die the death of men who died in the days
of 7
ignorance.'
i ' Taudih ',p. 49S ;
'
Mukhtasar ', vol. ii, p. 29 ;
'
Jam'u'l-Jawarni' ',
vol. iii,p. 288.
3 A tradition, sec 'Taudih', p. 298; '
Kashfu'l-Israr ', vol. iii,
p. 258.
3 Uddi's Commentary, vol. ii, p. 34.
* A tradition, see Kashfu'l-Isiar, vol. iii,p. 2
s
Ibid, p. 258.
6 A tradition, see Uddi's Commentary, vol. ii, p. :il ; '
Taqrfr',
vol. iii, p. 85.
7 A tradition, sec 'Taudih' on the margin of Talwih, p. 515.
116 Ml BAMMADAN JURISPR1 DENCE
Ijma' is an
and the Malikis recognize the authority of Ijma' not
essential
merely in matters of law and religion but also in
principle of
other matters such as organization of the army, pre-
Sunni
rurTsDrudenc
Para*ji"nsfor war and other questions of executive
1
Taudih', p. 300.
A Qur'anic verse, seu 'Taudih', p. 290.
"a
Ibid., p. 299.
4
Ibid., p. 294.
Nazzam do
while-i
"
, .
"" i * i
termmed b\ mere consensus oJ opinion, othei'
not recoguize
Shi'ah though admitting the authority of Ijma',^is source
jurists,
base it on a presumption that, when the Mujtahids of law
agree in a certain view, they voice the opinion of the
also laid down that it will last for ever, and that
found to be laid
explicitly down in the Qur'an or by the
error.2
1 '
Mukhtasar '. vol. ii, p. 29.
"
understanding.
Trie is Those who are not learned in the law so as to
power
confined to be considered fit for ijtihad, orexposition of the
Mujtahids, or laws, are debarred from participationin Ijma' prop-
a
erly so called, that is, when the object of such
law
collective decision is to settle questions, the mination
deter-
i
'Talwfh', p. -193; ' Mukhtasar ', vol. ii, pp. 29, 33; 'Jam'u'l-
'
have been construed to refer to the learned
ity :
ever, would not exclude any but infants, lunatics ;ind would include
the general
non-Muslims from such collective law-making, put
.
body ol
,
1 '
vol.
Taqrfr ,
iii, p. 82; '
Mukhtasar ', vol. ii, p. 33.
2 Talwih
'
', p. G39.
3 ' Kaskfu'l-lsrar ', vol. iii,p. 240.
L20 MUHAMMADAN JUBISPEUDENCE
amount to infidelity.1
Orthodox sects The orthodox sects are called Ahlu's-Sunnat wa'l-
('inmatu'd-l)a'wat "L"t),
(".:j"il or Sahibu'l-bid'at (t .-^l"
IcSaW),that is,men of innovation. Those who exclude
i '
Taqn'r vol. iii, p. 96; '
Mukhtasar ',vol. ii, p. 33; '
Jam'u'l-
,
whether a
or transgressor of the religiousinjunctions is excluded
disqualifi- from these deliberations. The argument of those who
cation
hold this view is that the opinion of a man who
does not act up to Ins doctrines is liable to distrust.1
Further they relj in this connexion on some of the
texts already cited. Such an eminent Hanafi jurist
as Imam Sarakhsi is however of opinion that unless
a man openly and flagrantlyviolates the law he will
not be excluded. According to the accepted Shafi'is
is no disqualification.2
Ijma' not of
According to the accepted opinion all the four
confined to
Siinni Schools, [ima' is not confined to any particular
"/ x
mriRrs nt s nv
particular age
aSe or country.3 The Malikis recognize the validity
or country of Ijma' of the Companions and their successors
Companions.
Opinion of the Malik that sacred learning, if not confined
says
"
M*"1^-8 ^" Madina, was mostly to be found there, meaning
during the time of the Companions and their sors,
succes-
1 Kashfu'l-Israr
'
', Bazdawf
'
', pp. 237-8.
2 '
Jam'u'l-Jawami' ', vol. iv, p. 250 ;
'
Mukhtasar ', vol. ii,;p.33;
'Taqrfr', vol. iii,p. 95.
3 '
Mukhtasar ', vol. ii,p. 35 ;
'
Jam'u'l-Jawami' ', vol. iii,p. 291 ;
'
Taqrfr ', vol. iii.
4 Mukhtasar
'
', vol. ii, p. 35.
5
Ibid., vol. ii, pp. 29, 35 ; Taqrfr ', vol. iii,p. 100.
'
CONSENSUS OF OPINION 123
it is laid down :
'
God wishes to cleanse the people
of the house (of the Prophet) of impurities ', and also
to a precept of the Prophet to the effect :
'
I am
" '
Taqrfr', vol. iii, p. 98.
a ' Mukhtasar ', vol. ii, p. 3G.
3 "
Kashfu'l-Israr', vol. iii, p. 262; 'Mukhtasar', vol. ii, p. 35 ;
Jani'u'l-Jawami' ',vol. iii,p. 2'J1 ; 'Taqrfr ',vol. iii,p. "J8.
CONSENSUS OF OPINION 125
[shaqu'l-Asffrfni
that he knew of twenty thousand
rules of law based on unanimity. Lbn Hammam
i '
Taqrir", vol. iii,p. 83.
2 Ibid., vol. iii,p. 83.
3 Ibid., vol. iii, p, 86; ' Mukhtasar', vol. ii, p. 38; 'Jam'u'l-
Jawami' ', vol. iii,p. 294.
126 MUIAMMADAN JUEISPEUDENCE
probability.1
There are again some lawyers who arc of opinion
that a rule of law cannot be said to be validly mined
deter-
the of
possibility the juristsarriving at a hasty sion
conclu-
1 '
Jam'u'l-Jawami' ', vol. iii, p. 295; '
Kashfu'l-Israr ', vol. iii,
p. 243.
2 ' Kashfu'l-Israr ', vol. iii,p. 243.
CONSENSUS OF OPINION 127
is
when a question is determined by consensus of opinion, question
v
it is not open to individual juristsof the same or subse- "oncJirren
quent age to come to a different conclusion, except it canrLot
when the matter is one in which some jurist,before be reopened by
formation of the known have individual
the Ijma', was to enter-
different view.3
a- ., T. ,. a subsequent
of"
,. , ,
1 '
Kashfu'l-Israr ', vol.iii,p. 243.
8 '
Taudfh '
in the margin of '
Talwih ', p. 515; Jam'u'l-Jawami' ',
vol. iii,p. 313.
3 '
Talwfh ', p. 515.
* '
Kaskfu'l-Israr ', vol. iii,p. 262.
128 MUTIAMMADAN JUKISPRUDENCE
1 '
Taqrir ', vol. iii,p. 71.
2 ' Talwfh ', p. 507.
3 '
Mukhtasar ', vol. ii, p. 47.
* 'Taqrfr', vol. iii,pp. 88-9.
130 MUHAMMADAN JURISPRUDENCE
opinion.3
Modes of Ijma' may be constituted by decision expressed in
constitution of the and
wor"js /
J :\
)
or by j
practice
i
jurists( A*j),
J
ofljma' ^ v^r
in either case it may be regular (aLojp) or irregular
-^ sa^ t" be constituted by words if the
(rfjuLai-.). *s
meeting information
Mujtahids, either at one or on
irregular[jma' at all.1
It is also laid down by Fakhru'l-Iskim that if a Caliph
among the Companions of tin- Prophet expounded the
law on a particularquestion in his sermon without the
', vol.
'
1 'Taudih on the margin of '
Talwfh', p. 499 ;
'
Mukhta^av i,
p. 37; '
Talwfh', p. 500; '
Taqrir ', vol. iii,p. 102; '
Kaskfn'l-Israr ',
vol. iii,pp. 22S-l.t ;
'
Jam'u'l-Jawami' ', vol. iii,pp. 295-:.iO0.
the small-
to the Companions, having regard to
ness of their number and the sense of equality and
Malikis of jurists
not necessary according to the Hanafis and the
i
'Kashfu'l-Israr', vol. iii,p. 229.
2
Ibid., p. 229.
3 Kashfu'l-Israr
'
', vol. iii,p. 229.
1 '
Jam'u'l-Jawami' ', vol. iii,p. 305 ;
'
Mukhtasar ',vol. ii,pp. 36-7 ;
'
Jam'u'l-Jawami' ', vol. iii, p. 294; '
Taqnr ', vol. iii,p. 593.
5 '
Talwih ', pp. 516-7; '
Kashfu'l-Israr ', vol. iii. pp. 2G3-5 ;
'
Mukhtasar ', vol. ii, p. 39; 'Jam'u'l-Jawami' ', vol. iii,p. 296.
134 MUHAMMADAN JUEISPEUDENCE
i '
Kashf u'1-Israr,vol. iii,p. 2G5;'Talwfh', 517.
p.
CONSENSUS OF OPINION L35
character, and
i "
Mukhtasar ',vol. ii,p. 44 ;
' Jam'u'l-Jawami' ',vol. ill,p. 815.
13G MUHAMMADAN JURISPRUDENCE
analogy.
The root meaning of the word Qiyas is '
measuring ',
'
accord ', '
equality \l As a source of laws it is
the Malikis as
'
the accord of a deduction with the
i '
Mnkhtasar ', vol. ii, p. 204.
2 Taudih', p. 302.
'
law.
mu as a source
Quran, or Hadith, or by consensus of opinion. -Liae0fiaw
reason is that with respect to analogical deductions one
l '
Ayatu'l-Baiyanat ', vol. iv, p. G.
a Ibid., vol. ii, p. 80.
3 Ayatu'l-Baiyanat ', p. 5.
'
140 MUHAMMADAN JURISPRUDENCE
'
We (that is, God speaking through the Prophet)
'
of an animal ".'
"
whatever is not found to be forbidden in the
'
Say,
Book of God is lawful to men".'
'
The affairs of the Israelites were in proper order,
until those born of slave girlsincreased in numbers, and
analogy ence to the first two texts that the law for the guidance
of Muslims in matter is to be found in the
every
Qur'an, but they point out that the law on some tions
ques-
alone has been laid down in express terms, and,
the rest, the Qur'an merely affords tions
indica-
as regards
from which inferences have to be drawn. As to
called
against the example of the Israelites, that was
for by the ignorance and prejudice of those addressed
but no such charge can be made against Muhammadan
juristsas a body. The principle underlying the text
down that nothing that has not been
which lays
declared unlawful by God can be made unlawful, is
Mu'adh answered :
'
by, (the light of) what is in the
i '
Taudih ', p. 307.
s '
Ayatu'l-Baiyanat ', vol. iv, p. 7.
1-12 Ml HAM MA DAN JURISPRUDENCE
Logicaldeduction: "
analogy is inapplicable.
(2) The law of the text must not be such that its
l '
T;iu4fh',p. 308 ; 'Mukhtasar', vol. ii,p. 211.
9
Ayatu'l-Baiyanat ', vol. iv, p. 5.
'
ANALOGY 143
good.1
(3) An analogical deduction may be founded ing
accord-
i
'Taudfh', p. 309.
s
Ibid., p. 309; Mukhtasar '
', vol. ii, p. 209; '
Ayatu'l-
Baiyanat ', vol. iv. pp. 12-26.
3
'Mukhtasar', vol. ii, p. 209; Sadru'sb-Shari'at, p. 13.
Ill MIIIAMMAPAN JUKISPRUDENCE
1 '
Ayatu'l-Baiyandt ', vol. iv, pp. 13-14.
146 MUHAMMADAN JURISPRUDENCE
condition.
Let us now try to understand what are the general
"jQlat or
present.
The accepted Sunni doctrine is that the Lawgiver
in enacting laws has in regard a certain policy (hikmat,
maslahat "cU"La^ si+L^)- This policy is to promote
ANALOGY 147
absolute and
necessity (i,"."c)" are the primary secular
l '
Taudfh', p. 318, et scq. ; Mukhtasar
'
Ayatu'l-Baiyanat ',p. 96 ; '
',
vol. ii,pp. 240-1.
s
'Taudfh', p. 318.
L48 Ml HAMMADAN JURISPRUDENCE
1 '
Ayatu'l-Baiyanat ',p. 97.
2 '
Mukhtasai- ', vol. ii,p. 239, et seq. and '
Al-Majallih.',p. 13.
ANALOGY 149
make deductions merely from the broad policy of the based merely
preservationof religion.
The general rule is that the effective cause must Effective
consent of must
be definite and perceptible; for instance, cause
It is not sary
neces- It is not necessary, however, that in every individual
tbat the instance to which a law applies, the propriety of the
propriety of the
should be
fact or circumstance constituting the effective cause
cause
1 'Taudih', p. 319.
2 '
Mukhtasar ',vol. ii,pp. 213-4 ;
'
Taudih ',p. 319.
ANALOGY 151
should than
it is wanting, the law which it gives rise to more one
, .
T-r
The effective cause is sometimes expressly stated or
-How an
. . .
i '
Mukhtasar ', vol. ii,pp. 233-4.
2
Ibid., p. 213.
154 MUHAMMAD AN JURISPEUDENCE
varieties.2
Effective cause One mode of ascertaining an effective cause is by
may be
elimination (sibr ju,),that is, by rejecting such facts
ascertained
by elimination
i'
'^Mukhtasar ',vol. ii,p. 242.
2 Ibid., vol. ii,p. 243.
ANALOGY 155
i '
Mukhtasar ', vol. ii,p. 232.
2
Ibid., vol. ii,p. 242.
156 MUHAMMADAN JURISPRUDENCE
lunatic.
An analogicaldeduction based on an effective cause
from a text
rests on the power of a Miijtahid, to draw correct
I'TaucJih', p. 371.
158 MUHAMMADAN JURISPRUDENCE
substantial.2
Let us understand the question with reference to
I'Taudih', p. 345.
2 " Mukhtasar ',vol. ii,p. 219.
ANALOGY 159
interesting.1
(1) Sometimes a certain circumstance may prevent
an effective cause being constituted at all,
as when a man trying to shoot an arrow, the
1 '
Tuudi'h ',pp. 345-6.
160 MUHAMMADAN JURISPRUDENCE
i 'Taudih', p. 352.
"" Ibid., p. 352.
JUEISTIC EQUITY L63
exceptions.
The Shafi'is repl}: The value of property sists
con-
not necessary.
Hanafis. " The Qadi must first inquire of the hus- Effect of
Islam
she will embrace Islam, and on his or her refusing to of a
cause of separation.
SECTION II "
ISTIHSAN OR JURISTIC EQUITY
1 '
Taudih ',pp. 374-5.
164 MUIIAMMADAN JURISPRUDENCE
( ,L^JlJ preferringor
literally, considering a thing to
") those that appear at the firs! glance I bi OUl id. i opposed to
of '
Taudih '
that a rule of sound juristic equity
cannot be opposed to a sound analogical deduction
f
It would seem that Istidlal as a method of juristic
deduction includes all forms of ratiocination which
SECTION V "
IJTIHAD AND TAQLID
Ijtihad or
it means the applicationby a lawyer (faqih ^X"i) of all
(al-mujtahidu'1-mustaqil
J."L*"oJl
^jLv^) as follows: he
The Shafi'is and the Malikis also hold that there may
be men whose qualifications as a Mujtahid are fined
con-
entitled to say
'
said
'
laymen
has not made a study of law and religion is cerned,
con-
l '
Jain'u'l-Jawami' ', vol. iv, p. 2G4.
IJTIHAD AND TAQLID 173
1 '
Mukhtasar ', vol. ii,p. 309.
2
Ibid., vol. ii,p. 307.
3 '
JamVl-Jawami' ', vol. iv, p. 2G(J.
i '
Durru'l-Mukhtar ', vol. i,p. 57.
17 1 Mill AMMADAN JUKISPRUDENCE
the present day that the last word has been said on
Muqallids especially
among the Banafis, requirethai a Musalman,
and if lie is not to be regarded as outside the pale of
Ghairu
Sunni orthodoxy, should attach himself to one or
\i uqallids
i of the four Schools. Such men have placed
themselves in violent opposition to a number of men
'
follow
'
i '
Raudatu'n-Nadia '
(Bulaq edition),p. 284, a commentary by
Nawab Siddfq Eusain on
'
Durru'l-Bahiya by Shaukdnf of Yemen,
'
2 Ibid.,pp. 251-2.
178 MUHAMMADAN JURISPRUDENCE
(Ijnia"),
, %
and any decision of his opposed to such certain and sus of opinion
absolute law, must be set aside by himself or by the
succeeding Qadi when the error is discovered. But
otherwise his decision cannot be set aside by another
180 Ml BAHMADAN JTJEISPKTJDENCE
mujtahadun tih
,
no one can be c" rtain, as already
stated, that a particular view is wrong, and hence
i '
Heddya ', vol. vi, p. 396; 'Fatwa 'Alamgfr ',vol. iii,pp. 431-2,
434.
2 '
Hedfiya ', vol. vi, pp. 39G-7.
3 '
Fathu'l-Qadfr \ vol. vi, p. 397.
"" 'Hcdaya', vol. vi, pp. 398-9.
s *
Fathu'l-Qadfr ', vol. vi, p. 39G.
IJTIHAD AND TAQLID 181
As-Siyaru'-l-Kabir, Jami'u'l
such as Futawa,
Khazanutu'l-Muftiin, Majma'u'n-Nawazil, Al-Zakhira,
Futawa Bashidu'd-din, Shaikhu'l-Islam 'Abdu'1-Wah-
i 'Fatawa Qadi Khan', vol. ii,pp. 451-9 ; 'Fatawa 'Alamgirf ', vol. iii,
pp. 439-41. As for the sale of an ummi walad Sadru'sh-Sharl'at seems
2 '
Fathu'l-Qadir ',vol. vi, p. 397.
182 MUHAMMADAN JURISPRUDENCE
i '
Raddu'l-Mukhtdr ',vol. i,pp. 55-7.
IJTIHAD AND TAQLID 183
sources of law.
grades.
(1) Ashabu't-takhrij (^ ^x\) ^.^') or those thai
(not Durru'l-Mukhtar)
'
the author of '
Al-Mukhtar and
'
according to some the author of '
Kanz are given a
1ml \ "
" been written i"\ llasan ibn Ziyad and some which
'
Majma'u'n-Nawayir, Al-Waqi'at " '
by Natifi and
'
Al-Waqi'at by Sadru'sh-Shahid.
'
None of these
and '
Al-Khulasa '
the rules of law laid down by, or
'
Al-Mabsut '
that should
no one accept anything contrary
to what is laid down in it and one should rely
every on
obvious " then the next question is, when there is0f0pj^Jo
difference of opinion among them, especially among
the founders of the Schools and their disciples,
who in
fact, frequently disagreed, how is the law to be mined
deter-
? According to some fatwa, that is, opinion
or ruling of a lawyer ought to be given absolutely
according to the opinion of Abu Hanifa, even if all his
l '
Durru'l-Mukht"r ', vol. i, p 52,
188 MUHAMMADAN JURISPRUDENCE
^xtlTgrtde6
is the fatwa '' '
0u this tatwd is ^ivCn '' '
We h"Id by
their this ', '
On this is reliance ', '
On this is based the
express
opinions practice', '
According to this is the practice of the
'
emphatic than '
On this fatwa is given ; and '
this is
'
most correct is stronger than '
this is correct '. The
'
author of '
Baddu'l-Muhtar points out that sometimes
a particular view is stated to be correct or most rect,
cor-
Qahastani's commentary on
'
Niqaya ', and unreliable
books, that is, those in which weak versions of the
law are reported such as
'
Qinvah '
by Zahidi should
be avoided and the propositions laid down in them
i Raddu'l-Muhtar
'
', vol. i, p. 54.
s Ibid. vol. i,p. 53,
190 MUUAMMADAN JURISPKUDENCE
[
Fathu'l-Qadir ', '
Bahru'r-Ba'iq '
and the like; some
as
'
BadduT-Muhtar '
and some are fatawas or lections
col-
and '
Fatawa 'Alamgiri'. Textbooks mented
supple-
by the commentaries and glosses are more
of being avoided.
an
advanced society. Nor as I had occasion to mention
elsewhere, can
it be truly said that the Muhammadan
of rights merely on
the ground of lapse of time.
ta'xir
( It must, however, be admitted that the
yx").
i See chapter i.
194 MUIIAMMADAN JUEISPEUDENCE
fulfillingone's contracts.
The legal character of an act is often affected by the
Voluntary and
lawful acts.
(eutU"l) or or
fcion8and ,..
.
extinguishing
rights, for example a sale, a lease, a gift, etc., and
rights
(isqatat c^ISUlJ)or acts extinguishing rights, such as
Originating acts are of two kinds, those whose legalActs which can
and
effect can be undone, that is, revocable acts (\_"jb *-~
-_0, be4und"nf
v^ *")i acts which can-
: Eating, which is
regarded in some
cases by the law as being obligatory (wajib)
as when eating is necessary for the tion
preserva-
of life and in some cases as being bidden,
for-
for instance, eating during a fast.
But eating itself is not the cause of a legal
injunction.
Similar distinction holds good with reference to
religious certain
imposes an obligation to perform devotional
purpose
acts is to secure the release of a person from such
l
'Taudih', p. 410.
ACTS 197
( Iju")
or permissible. Transactions of sale, pledge,
lease and the like are acts of this class.
With reference to the secular purpose of the law
Classification A juristic
act is said to exist if it
possesses its tial
essen-
as vitiated or faulty.
A juristicact of the nature of a secular transaction Constituted,
"pei-atlve and
rmu'amilat l^JLU^) is said to be constituted (muna'qad
v ' *
binding
if it possesses the elements of such
tlJixLo)) necessary
transaction. An act of this class is said to be tive
opera-
if
(nafid (jaJll), it has the desired legal effect,
otherwise, it is called inoperative. A contract of sale
Talwfh', p. 651.
200 MUHAMMADAN JURISPRUDENCE
discussed hereafter.
Conditions As regards necessary conditions, I mean those
i '
Talwfh', p. 705.
RIGHTS AND OBLIGATIONS 203
slander.
from non-Muslims.
'
'
European jurisprudence.
The Muhammadan jurists make a further general Original and
1 '
Taudih', 414.
p.
206 MUHAMMADAN JURISPRUDENCE
(-1)family rights,including :
(wirathat "u*],.).
rights ex-contractu.
((*))
Substitutory The above important original private
are the most
rights, rights. substitutory
The private rights are treated by
the Muhammadan juristsfrom the point of view of the
person ot incidence, that is, as part of the subject of
obligations(wajtib i"j"="") imposed by an imperative
claim ;
(nafsu'l-wajiib
i
k*-J1 ,-Jij)from obligation to do or from obligation
i
-Taudih', pp. 199-212.
208 MUHAMMADAN JURISPRUDENCE
of men.
be altogetheruncompensated for.1
and
and obligations. A declaratory law derives its character
rights
as such by reason of the connexion existing between
obligations
one fact and another. If the connexion between the
Constituents, two be such that one is included in the other, the
causes,
conditions former is called ruku ( ^3.) or constituent of the
and signs latter. If one fact directly brings about another fact
of the law
as its legal result the former, as we have seen, is
the former.
Tasdiq (jfJti-aS)
or acknowledgement of God's unity
and authority, for instance, is a constituent of Iman
i Tau"Mh\ p. 165.
'
RIGHTS AND OBLIGATIONS 211
in in far it is im-
mediately
essence (.Jut*)and (3) so as
pronouncement of
approved form. divorce in the
Divorce according to Muhammadan religion is an act
to be avoided as it involves dissolution of marriage
but is allowed because of necessity as sometimes the
'
if thou enterest the house thou art divorced ', or a
separation will
is condition which is
Signs A'lamat. or sign, really a
the force of an
effective cause,
because the legal
is called sign of
is legally married (ihsan ^La^l) a
punishment.
218 MUIIAMMADAN JURISPRUDENCE
Person of fall insolvency. A person with full legal capacity is, there-
fore,
legal capacity a living human being of mature and standing,
under-
age
free, of Muslim faith not seized with death-
etc.
LEGAL CAPACITY 219
acts to mind
of an act is affected in Muhammadan jurisprudence
by the condition of mind of its doer, some writers
of predestination
and free-will. All that is
Predestination question
and free-will for however, is to state the net
necessary my purpose,
result of such discussion so far as it has a juristic
significance.
the accepted Hanafi view, which is sub-
stantially
According to
the same as that of the other Sunni Schools
interference. It
power and partly the result of God's
is so far within his power that he is left free to choose
i 'Talwih', p. 355.
RELATION OF ACTS TO THE MINI; 221
it fasid intention
the intention, vitiates it, that is, makes or
involuntary.
A man having chosen between the doing and not
terms.
considered
/Ls^Y In that case intention in order to be complete
'
-with reference
.
/ ,
negligence
accident (khata ILi-).
Our volition or will is often moved by a feeling Wish, motive
and
towards or desire for (shauq j,^) the object directly
aimed at by the act or by its immediate or remote
I 'Talvvih', p. 787.
222 Ml" HAM MA PAN JURISPEUDENCE
wife '
I shall have nothing to do with you ', the law
Different would inquire what was his niyat in using the words,
meanings of that is, whether he meant by it divorce or not. This,
myat the question of
however, is to be distinguishedfrom
intention properly so called. Here whatever the man
also consent.
Sometimes a man's act may be induced by some- Judgement and
circumstances
now f0rjow ^e cases in which they are illustrated,
i '
Talwih ',p. 771.
U:N MUHAMMADAN JUKISPEUDENCE
not have their proper legal effect, but only those cases
i i
Taudih,' p. 449.
EELATION OF ACTS TO THE MIND 229
was made on the basis of, and the other saying that it
'
there are three things in which it makes no ence
differ-
payable '
is clearly a misprint for one hundred dinars. See Lucknow
edition, p. 501.
RELATION OF ACTS TO THE MIND 231
discard the
previous arrangement or to abide by it,
or if they disagree as to what they intended. The
result, according to the two disciples,would be the
same even if the parties agree that they intended
to abide by the previous arrangement, but as regards
kind it will depend, according to Abu Hanifa, on
religion.1
Coercion of duress coercion the
Tne effect or on legal effect of a
i '
Taudfh', pp. 454-5.
234 MUIIAMMADAN JURISPRUDENCE
I'Talwfh', p. 795.
3' Taudih', p. 474.
RELATION OF ACTS TO THE MIND 235
against her.
As regards acts of conduct done under coercion,
the question that is to be considered is, whether the
I'Talwih', p. 791.
RELATION OE ACTS TO THE MIND 237
penalties of law.
1 '
Al-Majallah', p. 52.
2 '
Taudih ', p. 445.
MUHAMMADAN JURISPRUDENCE
tion
inflic-
law is also apparent in questions relating to the
of certain sentences. For instance, if one of the
will not, therefore, incur the full penalty for its tion.
viola-
her right under the law, the Court will not listen to
man's faculties.
in the womb of its mother is a person
Infants A living child
in the contemplation of law and is, therefore, pos-
ed of inherent legal capacity, which, however, is
infant.
infant possessed of under-
His competence competence of an
The
and to enter into
to perform standing to perform juristic acts
,r .
., i- " an infant to
, . , mi Tv/r c
relating to faith. Thus if a non-Muslim infant em-
Islam on hiS
braces the Islamic faith his marriage with the non- marriage
Muslim wife will be dissolved, and he also loses his
2'Taudih', p. 425.
3'Al-Majalldh', p. 152.
244 MUnAMMADAN JURISPRUDENCE
regarded consequences
as of the man's faith, but of
on question whether
the an infant's faith in Islam is
i 'Al-Majalldh', p. 157.
PEESONS OF DEFECTIVE CAPACITY 245
his Muslim wife will not have to live with him definitely.
in-
If a lunatic's parents leave him within the
a Muslim.
The legal capacity of an idiot stands on the same Idiots
actions mmd
reason of weakness of intellect that his gener-
ally are not in accord with what reason or common
Unqualified
The law also recognizes inhibition of a limited cha-
i '
Taudih ', pp. 457-8; '
Al-Majallah ',pp. 158-9.
'Al-Majallah', p. 154.
a
PBESONS OF DEFECTIVE CAPACITY 247
nature of
property, the master is allowed to abandon
original condition.
As slavery connotes disabilityand degradation mak- a slave cannot
ing a slave the property of his master the former is own property
Slavery, however, does not negative capacity for any He may marry
other primary rights except right to property and and divorce
free man.
A slave For the same reason, that is a slave not being sessed
pos-
incompetent of the full dignity of a man, he is not competent
to hold offices
to hold offices involving power or privilegesuch as that
of dignity
of a guardian, Mutwalli or Qadf. Nor is he eligible
Not a as a witness, for the right to give evidence means a
origin.
Different grades The Sunnfs classifyheresies into different grades,
of heresy
according as they recede further and further from
The tendency their own doctrines. Some, they say, approach or
to charge almost amount to unbelief, such as the doctrines of
Muslims with
the Mu'tazilis regarding the divine attributes and on
unbelief
condemned the question of free-will and predestination which
author of '
Bahru'r-Ra'iq', however, states that he self
him-
would not charge a Muhammadan with unbelief
for using words of the nature mentioned in the books
of fatawa.1
i "
Raddu'l-Muhtur', vol. iii,pp. 3X9-20.
PERSONS OF DEFECTIVE CAPACITY 25 L
within non-Muslims
such of them as live the jurisdiction of a
*W1 e up
Muslim State. Let us see what are the principles
determining the extent of such application which, as
that is to say, the law will not lend its active support
to the doctrines of unbelief touching the essentials
instant of apostacy.
Since heretics believe in the unity of the Godhead Heretics
category.2
It is stated in Fatima Bibi v. Ahmad Ba~ksh? that
no particular incapacitiesof a sick person can be said
to be infallible signs of death-illness. This may haps
per-
be granted. The real question,however, in all the
ordinarilydetermined by medical
experts, or by the fact
that the patient is incapacitatedby the illness from
l '
Al-Majallah ',pp. 264-5.
"'
Al-Wajiz', p. 272; ' Tuhfatul Minhaj ', vol. iii, p. 3G, et seq. ;
in appeal.1
The rights of the heirs and the creditors attach
might be free.
1 'Talwfh,' p. 757.
THE PLACE OF CONTRACT 259
which is realized on
the policy is sent to the lim
Mus-
on
OWNEKSHIP
Viqayah
' l
as the expression of the connexion existing
between a man and a thing (Shayun *
i) which is under
milk is often used for the thing itself over which the
or muta't that
(jj*l") is, right to conjugal society.
The last forms the subject of munakihat or matters
i 'Taudfh', pp. 432-3; " Talwfh ', p. 751; ' Bahru'l-'Uhin '
munity
com-
on '
Musullumu'th-Thabit '
also Mullah Nizamuddin's notes
dead bodies l
or human blood are not property.9
Again the value of a thing may be so inconsiderable
that the law would not recognize it at all. The Arab
Things which There are certain things and advantages which the
be
cannot
jaw joes not permit to be exclusively appropriated by
urne m o
Qn^ jeavjng them to a greater or less extent for the
^^
common use of all (al-ashya'u'1-mubahatuTumumiah
indispensibleto
*^yc"J)^Ux"J)*U-a"^l)
as individual and
2 "
Hedrfya' and '
Fathu'l-Qadfr ', vol. vi, p. 42.
3 "
ltuddu'l-Muhtar ', vol. iv, p. 6.
2GG MUHAMMADAN JURISPRUDENCE
(c^U-lx")
or res nullius. We shall presently consider
of moveable
of this liability property to destruction
i '
HedfJya ', vol. vi, p. 137.
* See post Chapter VII.
268 Ml JIAM.MADAN JURISPRUDENCE
animals.
and haiwana't (cl"'J);j^)
or
non-specific or indeterminate.
Articles of the class of similars cannot, as a rule, be
recovered specifically,
and are thus regarded as dayn or
J 'Al-Majallah', p. 22.
2
Ibid., p. 22.
270 MUHAMA1ADAN JURISPRUDENCE
a nuisance.1
'
i '
Fathu'l-Qadfr ', vol. vi, pp. 414-5 and Al-Majalldh',pp. 194-7.
OWNERSHIP 271
thing or let it out and so long as he does not pay off suspended or
curtailed
the debt or the lease does not expire he is not entitled
or
easements1
(haqqu'l-mariir
;^ll j^), a right to the now of water
J^ V,J] J}^)*
(haq"ju'l-majra Jind a right to discharge
rain water over another's land (haqqu'l-masfl r^
These
J.jWxcJl)-1 rights correspond to easements in lish
Eng-
law. An easement is to be enjoyed as in the past
and cannot be altered or enlarged. It is lost by disuse.2
Pre-emption The Muhammadan law also recognizes in connexion
i "
Al-Majallah', p. 199; '
Hedaya
'
and '
Fathu'l-Qadfr ', vol. vi,
pp. 411-5.
a '
Al-Majallah ', pp. 198-200.
:(
Holloway, J.,points out in G H.C. Rep., p. 30, that the use of the
word pre-emption is not quite accurate and that the right of shafa'
the vendor and the purchaser and that the right to empt
pre-
must be asserted and enforced with promptitude,
because it is in defeasance of the purchaser's right.9
As soon as the pre-emptor receives information of the
(talabu'l-muwathibat XaJI^cJ!
"" "^\s)and follow it up by
repeating it in presence of two witnesses before the
vendor or the purchaser or on the spot (talabu't-taqrir
,i"A\ L-_ A\s) and he then out
with-
wa'1-ishhad oly-^lj must
(talabu'l-khusumat 'Lcy"^\
i JJa). According to some
bargain.
The right of pre-emption placing as it does an
1 '
Nailu'l-Ma'arib', vol. i, p. 141.
" " Fathu'1-JaKl ', p. 295.
3' Nailu'l-Ma'arib ',vol. i, p. 142.
4 Ibid., p. 140.
4 Vide remarks of Holloway, J., in 6 Mad. H.C. 26, p. 31.
276 MUI1AMMADAN .JURISPRUDENCE
himself.
l '
Durru'l-Mukhtdr', vol. v, p. 136,
POSSESSION 279
Possesslon
his servants or agents are totally excluded and no
other
person
has a right to possession of the thing
at the same
time. For instance, possession of the co-
owner
of an
undivided share or musha' is incomplete,
inasmuch as
the other co-owner
has
a right to sion
posses-
contract implies a
much narrower range
of rights than usufruct
ACQUISITION OF OWNERSHIP
SECTION I "
ORIGINAL ACQUISITION AND PRESCRIPTION
or extinguished.
Ownership, as stated in '
Al-Majallah ', is acquired
of '
securing
'
by means of which res nullius is verted
con-
Similarly game
is secured when it is disabled from
B but 13 does not accept the offer the sale and the
i '
Shai'M-Viqdya', vol. ii,pp. 4-5-
CONTRACT 283
the adding of
surety's liabilityto that of the
the person
originallyliable, the consideration that passed to the
sense of succession.
Moreover, it is this theory which makes most of
a contract
l '
Al-Maja,llah ', p. 49.
CONTRACT 287
a surplusage.
As than one may be joint owners of
Joint contracts more person
a property similarly parties to a contract on each side
1 .
(1) Alienation property : for exchange, namely,
of
determinate thing.
1 '
Kifa'ya',vol. v, p. 455.
1 '
Indyali', vol. vi, p. G5.
3
'Hedaya', vol. vi, p. 78; 'Fathu'1-Qadi ', vol. vi, p. 65;
SAL.U 291
relatillg to sale
contracts of this nature generally are that it must
i
'Xifa'ya ',vol. vi, pp. 258-9.
2 *
Hedaya', vol. vi, pp. 49"57.
3 65-6.
Ibid., pp.
* See ante, p. 14.
292 MUHAMMADAN JUEISPRUDENCE
When gold is sold for silver or vice versa the law not
same kind for the same kind and the same tity
quan-
for the same quantity, from hand to hand and
the other.
The general rule being that riba applies to articles
which are sold by the weight or measurement of
" '
Heddya ', vol. vi, pp. 177-8.
296 MUHAMMADAN JURISPRUDENCE
i See '
Al-Majall"b
', p. 58..
298 MUHAMMADAN JURISPRUDENCE
i '
Hedaya ', vol. vii, p. 481 ; Mahomed Budish Khan v. Hosseini
"lven
possession to be sufficient. If the donor vacates posses-
sion in pursuance the
gift,though the donee may
of
not take actual possession the gift will be held to be
perfected. What is required is that the donor should
gift-4
The law also imposes certain restrictions as regards
the property which may be made gift of. In the first
1 '
Hedaya ',vol. vii, pp. 492-3.
2
Ibid., vol. vii,p. 493 ; see also 23 Bom., 682.
3 '
Bahrur-Raiq ', vol. vii,p. 311; '
Durru'l-Mukhtar '
and Supp. to
give you this thing for thy life the Hanafi, the Shafi'i
and the Hanbali jurists would regard it as a gift of
the fee simple. On the other hand, if the words
of gift relate only to the usufruct of a thing, the law
would prima facie treat them as having the effect of
1 '
Raddu'l-Muhtar ', vol. iv, p. 558.
3 '
Tuhfatu'l-Minhdj ',vol. ii,p. 342.
3 Mullick Abdool Gafoor v. Mulika, sec 10 Cal., p. 1112.
pay off his debts. The gift and the condition, in such
conditional
effect from a future date. Nor can it be made condi-
tional. For instance, the donor saying to the donee
'
if I die before you this property is yours '
such a gift
which is called would
ruqba ("ui"\) be bad. A conditional
to
individual who can take possession of the thing either relating
e onee
himself or through his agent or guardian, or to some
It
sadaqa ("kja.c). may be pointed out that a sadaqa
differs from a waqf in this, that in the former the
i
36Cal., 431.
302 MUHAMMADAN JURISPRUDENCE
flour ;
of the donee ;
*
when the donee is a child of the donor and according
to accepted Maliki view, revocation of a gift after
2
delivery of seisin is permissibleat all.
not
condition
bi Sharti'l-'iwad (^*!) \sJLi h"") or gift on
simple Gift.
According to Muhammadan law the very conceptionWaqf
idea of its being owned Its definition
of property involves the by
some one possessed of full powers of disposition over
it, though such powers or some of them may be in
3 '
Fatawa '
Alamgfrf ', vol. iv, p. 550 et seq. See also 13 CW., 1G0
donor's family they are rich or poor, because so far as the gift to
1
It is doubtful whether according to the Judicial Committee of the
the waqf.2
the law is practicallyunfettered with Property which
But, though
may *"e dealt
respect to the objects of such a grant, the accepted
...... "
i.
"
i ". ,u t
with by waqf
juristictheory is certainly very narrow as to the forms
specifiedarticles 3
and such moveables with respect to
necessary.2
v, p. 425 Al-
'
1 '
Fatawa ', vol. ii, p.
'Alarngfrf 4GG ;
'
Hcdaya ', vol. ;
All.,321, p. 323.
WAQF 309
A
waqf like a gift cannot be made conditional or
say, the testator can revoke it before his death and the
ence an
( J^Lo) or trustee of the waqf,
a
or appoint
rr
a competent
L
K"Jj '
management
person in that behalf. In the latter case the waqif may
lay down such rules of management as he considers
J '
Eaddu'l-Muhtar', vol. iii,p. 395 ; Baqar Ali Khan v. Anjuman Ara
Begum, 25 All. 236, p. 252.
2 Shahar Banoo v. Aga Mahomed Jajjer Bindaneem, 3i Cal., 118
(P. C); see also 35 LA., 151.
3 See 36 Cal., 21.
310 MTJIIAMMADAN JUEISPEUDENCE
founder of
been raised but not yet decided, whether a
Was! is the
is called (,""?})" The executor cessor
suc-
not part with his rights until after his death, when such
i 2G Bom., 497.
312 MUHAMMADAN JURISPRUDENCE
pointed out in *
Baddu'l-Muhtar 7 the law regards as
i '
Hcdaya ', vol. ix, pp. 409-11 ;
'
Fatdwa 'Alamgfrf',vol. vi, p. 188
ct scq.
""' 'Ihirrn'l-Mukhtar', vol. v, p. 484; and '
Tanwiru'l Absar', and
Raddu'l-Muhtar', vol. v, p. 484.
5
28 All. 715, p. 718.
BEQUEST 315
that the testator during his lifetime has a right to "f bequests
revoke it, because all such dispositions may be revoked
i 8 Cal. l, p. 6.
316 MtinAMMADAN JURISPEUDENCE
i '
Durru'l-Mukhtdr '
and '
Raddu'l-Muhtar ', vol. v, p. 462.
2,A1-Majallah\ p. 60.
3 Ibid.,p. 66.
LETTING AND HIRING 317
it to another person.1
A contract of ijara is constituted by proposal and A contract of
fault.3
If a lessee has caused damage to the premises, the
"J
Ibid.,pp.;74-5.
3
Ibid., p. 87.
4 Ibid.,p. 77.
318 MUHAMMADAN JURISPRUDENCE
bailment for hire the bailee must show that the loss or
et
1
p. 118,
'Al-Majallih', seq.
2 '
Hedaya', vol. is, pp. 82-6.
PLEDGE 319
a contract to sell.1
The pledgee is entitled to have possession of the Pledgee's rights
pledge until the debt is satisfied. Though this right
to possession is in the nature of detention, the
security.
According to the Hanafis the property pledged is a Responsibilities
in of the pledgee
trust the hands of the pledgee who is therefore
for its insures a pledgor
responsible safety and preservationand
the same, so that if the pledge perishesin the hands
of the pledgor and it be of equal or greater value
than the debt, the debt will be extinguished and
the pledgor will be entitled in the last case to have
him, while the charge for its safe custody falls on the
If the debt is not paid the mortgagee can ask the Remedies of
Court have the sold and the debt satisfied the pledgee
to pledge
out of the sale-proceeds. He cannot sell it himself
l '
Hedaya ', vol. ix, p. GG.
S Ibid., vol. ix, p. 79 'Al-Majalldh',p. 115.
;
320 MUHAMMADAN JURISPRUDENCE
future date.
transfer of an obligation.
Any diminution of the of
liability the original debtor
or any concession to him accrues to the benefit of
i '
Al-Majallah\ p. 11G.
2 Ibid., p. 90.
322 MUHAMMADAN JUEISPRUDENCE
i '
Al-Majallah ',p. 248.
PARTNERSHIP 323
be specified,otherwise, it
partner in the profits should
would be regarded as fasid or vitiated.
of partnership
all the partners stand on an absolutely equal footing,
in respect of their contribution to the stock, their share
partnership.
The law allows the partners to value each other's
l
AI-Majallah\ pp. 214-33.
'
324 MU1IAMMADAN JUEISPKUDENCE
dariba if they
(L.Lax") are to divide the profitsbetween
them ; if in such a case the owner of the capital
(rubbu'1-mal the other is to take
JUH u-".)or party
cultivating
such a partnershipis called muzara'at (*CjL").
If there be a partnership with respect to the trees
of a partner, or
his becoming a
lunatic. But in the
latter case
the partnership will continue as
between
FAMILY LAW
i '
Taudn"\ p. 71, and ante, p. 95.
328 MUHAMMADAN JURISPRUDENCE
purposes.
How marriage A marriage like any other contract is constituted by
is contracted for its
proposal and acceptance and does not depend
validity upon the observance of any religious rite or
minor.3
The Malikis would confine the right of monial
matri-
i '
Hedaya ',vol. iii,p. 175.
2
'Al-Wajfz', vol. ii, p. 8.
3 See 'Heddya', vol. iii,pp. 194-5.
MARRIAGE 333
the of
non-specification dower at the time of marriage
does not affect the validity of the marriage.2 She
family.
The wife's right to dower becomes complete on the summation
con-
Baillie's '
Digest ', part i, p. 91.
MARRIAGE 335
possessed of understanding.
Talaq or divorce is strongly condemned by the
saying '
I have divorced thee irrevocably '
or by the
1 '
Pathu'l-Qadfr'.vol. iii,p. 326.
338 MUHAMMADAN JURISPRUDENCE
improper behaviour.
It is called literallyseparation.
furqat (Zi.i), If a
is
religion or by healthy public opinion, monogamy
partly due to the fact that the Arabs who were noted
for their pride of birth and genealogy condemned a
l '
Hedaya ',vol. iv, p. 180 ; 'Fathu'l-Qadir',p. 180.
MAINTENANCE 343
i '
Heddya ',vol. iv, p. 183.
344 MUHAMMADAN JURISPRUDENCE
of
custody (hizanat ""La-^) the children. The law gives
the custody of a child which is too young to be dependen
in-
of another's help in feeding,clothing and the
like " for a boy the limit is fixed at seven years and
and sons thou dost not know which of them are the
*
nearest and of most benefit to thee.' The madan
Muham-
claims. here
I to set out the important rules
propose
of this scheme of succession, which is a most elaborate
i '
Qur'dn : Suratu'n-Nfsd".
INHERITANCE .'347
l Rumsey's '
Law of Inheritance ',pp. 17-21.
INHERITANCE 349
another is
residuaries. A residuary together with a
example, a son
excludes another son's son ; secondly,
and self
person whose right to the safety of person or property
is attacked to wait until the harm has been done,
protection not only of his life and limb but even erty
prop-
; for instance, if a thief runs with the
away
stolen property at night the owner is entitled to follow
and to kill him if necessary in order to rescue it.1
On the same principle in cases of trespass or
l '
Hedaya ',vol. ix, pp. 1GG-7-
s Ibid., pp. 239-40.
354 MUHAMMADAN JURISPRUDENCE
human being, the general rule is, that the loss will be
i '
Hoddya ',vol. ix, p. 247.
9 Ibid.,vol. ix, p. 250.
TORTS 355
l '
Hed.iya ', vol. ix, pp. 219-50.
8 Ibid., vol. ix, p. 240.
3
Ibid., vol. ix., p. 245.
356 MUI1AMMADAN JURISPRUDENCE
the volition of the coercer then the law would treat the
requiringconsent
disposition is invalidated by coercion,
but the delivery property to Z cannot
of be imputed
i '
Al-Majallah ',pp. 142-4.
3G2 MUHAMMADAN JUEISPEUDENCE
Taa'zir may
be inflicted for offences against human Taa'zir
case,
the sentence by which the objects of the law
is
plaintiff entitled to institute his action in the Court
u- " "
4.u
claim, plaintif
a person off his ui
right t
from 4U
another in the presence ot
defendant
a judge. The man making the demand is called Muddai
366 MUHAMMADAN JURISPRUDENCE
of guardian, nor
a will a suit be heard against
him without such representation.
A claim must A claim must conform to certain rules. For instance,
conform to individuals whom it is
^ne individual or against pre-
certam rules
ferred must be ascertained. The thing or right claimed
party .
to to
require the plaintiff prove his claim against them
of avoidance.
When there are several sharers in a specificprop-
erty
but not by right of inheritance, one of the
. . ,.
". ,
, , , , ., ,. ,
i '
Durru'l-Mukhtar', vol. iv, p. 391, also '
Raddu'l-Muhtar '.
PROCEDURE 371
to be preserved.
When a decree is made the question arises, whom
1 '
Hcddya ', vol. vi, pp. 381-90.
372 MUHAMMADAN JURISPRUDENCE
children.
take security.
The Muhammadan law allows the parties disputingArbitration
about claims in respect of property and other similar
i '
Hediya', vol. vi, p. 430.
374 MUHAMMADAN JURISPRUDENCE
i '
Raddu'l-Muhtdr ',vol. iv, pp. 377-9.
'
2
Ibid., p. 378.
EVIDENCE 375
Muhammadan jurists,
as the very object of tion
informa-
is to disclose what occurred. In fact according
to them false testimony or false evidence or false
information would be a contradiction in terms.9
The necessity for evidence mostly arises when the
i
'Al-Majallah\ p. 289.
9 '
Fathu'l-Qudfr ',vol. vi, p. 44G.
37G MUHAMMADAN JURISPRUDENCE
i '
Fathu'l-Qadfr ', vol. vi, pp. 458-9 ; Hedaya ', vol. vi, pp.
'
458-9.
2 'Hedaya', vol. vi, pp. 4GG-7 ;
*
Al-Majallah ',pp. 287~8.
3 '
Hedaya ',vol. vi, p. 469.
EVIDENCE 379
called '
of (Shahidut ala Shaha-
necessity.2
Legal testimony must also agree with the claim ; Testimony must
1 '
Hedaya', vol. vi, p. 4C"'J.
2
Ibid., vol. vi, pp. 522-33.
3'
Al-Maja,llak\ p. 291.
380 MUHAMMADAN JURISPRUDENCE
at particular time.
a
The evidence that a certain
be evidence
(Qarinat "i" i) may also relied upon as a proof. But
l '
Hediya ', vol. vi, p. 425.
382 MUHAMMADAN JURISPRUDENCE
in evidence.2
^l^)^
(8...-AJ1 which corresponds to estoppel of the
1 Al-Majallah\ p. 297.
'
2 '
Fatawa '
Alamgfrf ',vol. iii,
p. 534 ;
'
Al-Majallah ', p. 297.
CHAPTER XI
LAW
law
system is, as already mentioned, that of a common-
the wrong.
He is merely The Imam is merely the representative or delegate
the representa- t^e from whom he derives his rights and
0f people,
e
e? privileges. The office is elective being based on
J '
Raddu'l-MuhUr', vol. iv, p. 336.
38G MUHAMMADAN JURISPEUDENCB
property of
and minors, lunatics and idiots
person
are generally delegated to the Qadi in addition to
i '
Heddya ',vol. ii,p. 112.
ADMINISTRATIVE LAW 387
one uniform rate for all, rich or poor. Since this tax
1 '
Hcdaya ',vol. v, pp. 2SS-'J9.
a
Ibid.,pp. 277-88.
388 MUHAMMADAN JUK1SPRUDENCE
Khiraj or
payment of khiraj, subject to certain conditions.
Mecca is, however, exempted from this rule for
the irrigation.
means of
a country If which has been
^a *
ticular class of cases may be excluded from his juris-
diction or he may be empowered to try only particular
classes of cases. For instance, a Qadi may be hibited
pro-
from hearing cases instituted after the lapse of
a certain time or he may be appointed only to hear
a particular case.
The Qadi may appoint a deputy Qadi if he is
l '
Fatdwi 'Alamgfrf', vol. iii,p. 390.
* Ibid.
ADMINISTRATIVE LAW 391
heirs are
absent in a foreign country or
whose abouts
where-
of the estate of a
deceased is to be appointed in
person
1 '
Fatawa 'Alamgfrf ', vol. iii, pp. 418-20.
2 Ibid., p. 513.
CHAPTER XII
condition of a Muhammadan.
of war
such war, but not of every individual. What is meant
is that if a sufficient number of men join, the rest,
given to them.1
or Daru'1-Harb (u-j.^il
il*")literally,territory of war.
Mukhtar
'
as representing the law on the subject.
The two disciples,however, hold that such a country
would be called Daru'1-Harb if the laws of the lims
non-Mus-
v, pp. 210-3.
1 '
Hedaya ',vol.
MUHAMMADAN JURISPKTJDENCE
this
'
author of '
Hedaya says that is the accepted
law. According to Abu Hanifa, Friday prayers are
Muhammadan Governor.1
be liable to molestation.
It may be observed here that the Friday and 'Id India is
Daru'l-Islarn
prayers are regularly held all over India and recog-
nized to be validly held according to the Muham-
madan
Canonical Law. Further, the Muhammadans
of India enjoy absolute protection of person and
as
is practicable lor him to do so, to the rules and
Milters it to be done or
is guilty of other similar
Ada "
'Adat "
custom.
'Adhab =
spiritualpunishment.
'Adil "
sworn allies.
obligations.
Ahliatu'1-ada' = capacity for the exercise of rights and charge
dis-
of obligations.
Ahlu's-Sunnat wa'1-Jama'at = orthodox sects or the Sunnis.
'Alam =
proper noun.
'Alamat = sign.
Al'am'ru bil yadi = the business is in thy hands; delegation to
Al-fa = then.
to wife.
400 MUHAMMADAN JURISPRUDENT!
cause.
A mill = trustee.
Anhiya = prophets.
Aq"r landed propei fcy.
'Aqd = contract.
Arkan -
essential elements (of a juristic
act.)
'Asba = residuaries.
Ashab = Companions of the Prophet.
Ashabu'l-fara'id = sharers.
= original(rights).
Asnad "
statement of authorities in a tradition.
A vat = verses.
= signs.
'Ayb = defect.
'Ayn "
Bada't capital.
Badihi = intutional knowledge.
402 MTJHAMMADAM 1 1 1IISPEUDENCE
G-hasab asurpation.
Ghasib = usurper ; trespasser.
Ghayia = that which relates to the result aimed at (in a
contract).
Ghurur - fraud.
Hadd a form of punishment.
Hadith precept of - the Prophet; a tradition.
Haiwanat = animals.
llajj = pilgrimage.
Hakim = Lawgiver ; Magistrate ; .Judge.
Halal =
proper.
Haq = right.
Haqiqi = words of primary meaning.
Haqqu'l-mariir right of way.
Haqqu'l-majra right to liow of water. =
rights in rem.
Harabi =
hostile (to the law) ; alien.
Harain -
forbidden (act).
Hatim = a place where oaths used to be administered.
Hawalat " novation.
Hazl = jest.
Hiba = gift.
Hibabi Sharti'l-'iwad = gifton condition of an exchange.
Hiba bi'l-'iwad = gifton receivingsomething in change.
Hikmat, maslahat = policyof law.
Hissi = natural acts.
Hizanat =
custody.
Hujub = doctrine of exclusion.
Hukm = law ; command ; decree ; order.
Hukmi symbolical (possession).
Hurmat = right to reputation.
Hasanun = good (acts).
'Ibadat = acts of devotion.
Ibahat =
permissibility.
"Ibaratun = (the conveyance of meaning directly) by the
Ii'tai mislihi =
giving a similar article.
I jab = proposal.
Ijara = lettingand hiring.
Ijma' = consensus of opinion.
Ijtihad = expositionof the laws.
Ikhtiar = volition.
Ikrah -- duress.
Ilham = inspiration.
'Illat = effective cause.
Isharat "
gestures or signs.
Isharatun = connotation.
Jahl = ignorance.
Jama' munakkar = indeterminate plural.
Janii' = all of them.
Jama't = community.
Janayat = Torts.
Jarh "
exception or objection,cross-examination.
Jihad =
religiouswar.
404 MUHAMMADAN JUEISPEUDENCE
Jiziya =
poll-tax.
Juz a part.
Kaffarat = atonements for the non-discharge of certain tions.
obliga-
Kafir ungrateful;anon-Muslim.
Klml'i = obscure.
Kamilatun -
perfect (punishments).
Khula- lit. stripping; conferment of the power to dissolve
Khilafat ^succession.
Kluinir an intoxicating drink prepared by fermenting the
juice of grapes.
Khas =
specificword.
Khasm "
opponent.
Khata = mistake or accident.
Khariji outward. =
ground of fraud.
Kafalat suretyship. "
K hi raj "
Khula' "
marriage.
Kinaya = allusive (words).
Kitabat "
writings."
Kull - all.
Lia'n charging the wife with adultery.
La muthbatun = that which does not prove or establish.
Lazim = binding (transaction).
Lazimuhu'l-mutakhkhar = that which is necessarily implied
as a consequence of the applicationof a word in the text.
Ma = that which.
Maa '
sil'at = crime.
Mabia' = the thing sold.
Mad'dfa =
appertaining to the essence.
Mahru'l-mithl =
proper dower.
Ma'hiid =
particularnoun.
Majaz = tropicalor secondary word.
Majnun = lunatic.
Makilat = things sold by measurement of capacity.
Makruh "
condemned acts.
Malik = owner.
Manfaat "
usufruct.
public good.
Mashhiir = well known (traditions).
Matuh = idiot.
Maudii' lahu = a word conveying its meaning by denoting the
Mithaq-i-azali primordialcovenant. =
Mithli =
similars.
Mithlun ma'aqulun intelligiblysimilar.
=
Mua'jjal = exigibledower.
Muajjal = deferred dower.
406 MUHAMMADAN JURISPRUDENCE
Mu'amilat "
= dealingsamong men.
M udda'i = claimant.
Miufassar = unc(|iiivocal
word.
Muharim =
persons permanently prohibited
from intermarriage.
Muhkam = a word, the meaning of which is unalterably fixed.
Mujlis = meeting.
Mujnial "
vague.
Mujtahid =
jurist.
Mujtahidun fi'1-Madhhab = juristshaving authority to expound
according to a particularSchool.
law
on unsettled questions.
Mujtahidun li'sh-Shari' = juristswho founded schools of law.
Mula'im =
appropriate(reason).
Mun.abadha = a form of sale.
Munakahat relating to domestic
laws relations.
Musaqat "
customary form.
temporary marriage.
Mutawatir = proved by universal testimony.
Mutlaq = absolute.
Mutwalli " the trustee of a waqf.
Nafid = operative.
Nafs =
person ; life.
Nam' = prohibitive
law.
Naql transfer.
=
Nuqud =
money.
Qabda = possession.
Qabul = acceptance.
Qada' = non-specific
discharge of an obligation.
Qadi = a judge ; a magistrate.
Qaran = period.
Qard = loan.
Qasd, =
intention.
Qawd = retaliation.
Qimi = dissimilars.
Qisa's, =s retaliation.
108 MUHAMMADAN JURISPRUDENCE
Qismal partition.
Qiyis = analogicaldeduction.
Qubhuu = bad (act).
Qur'an = the bock revealed to Muhammad.
Qurbat "
nearness to the Perfect Being.
Radd = return ; restitution.
I(;u|aba =
corpus; a slave.
Saghir = minor.
Sahibu'l-bid'at = men of innovation ; heretics.
Saln'h = correct; valid.
Salam = a form of sale where the price is paid in advance.
Salat prayers.
Samawi = providentialcircumstances.
Sarf = a sale of gold or silver for gold or silver ; money-changing.
Sarih. = 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 persons
in undivided shares.
Tanfid = execution.
Taqrir =
fixing(meaning).
Tarjihu'l-bayy'inatpreferenceof proof. =
Tark omission.
-
-
Tasarrufat "
Tasdiq =
acknowledgement of God's authority over our actions.
Tawatur universal testimony.
Ta'zir = a doctrine of punishment.
Tazwfj = marriage.
Thainan = consideration ; price.
Thanawiyatun =
those who believe in two gods ; magians.
Thayyiba = a girlwho has had sexual intercourse.
Thawab = merit.
spiritual
Tuhr = period of purity.
Turku't-tarwa = negligence.
Uf == an exclamation of anger or contempt.
Ummatu'd-Da'wat = men of innovation ; heretics.
'Uqubat = punishments.
'Urbiin = a kind of sale on approval.
'Urf =
usage; custom.
'U'riid = goods.
'Ushr = tithe ; a kind of land tax originally leviable from
non-Muslims alone.
Vakalat =
agency.
Wadf = sale at less than cost price.
Wad'ai = declaratory laws.
Wadiyat = deposit.
Wahi = revelation.
Wasi = executor.
Wasiyat =
bequest.
Waqi'at = cases.
Wathniyatun idol-worshippers. =
Yad = possession.
GLOSSAEY OF ARABIC WORDS AND PHRASES 411
Yahi =
reviving (waste land).
Yaqini =
certain proof.
Zahir
=
manifest (of meaning).
Zahiru'1-hal =
outward circumstances.
Zahirun in
=
appearance.
Zaujiat =
marital rights.
Zanni =
presumptive.
Zakat = poor-rate.
24
pupils of, . . . . . . . . " .
Istihsan 25
assigned prominence to or equity . . . .
Acts "
physical or mental, .. .. ..
"" ""
193
juristic,
or originating acts, informations and acts of faith ..
195
juristic,
are constituted, operative or binding .. ..
199-200
and waqf .. .. .. .. ..
37
courts to follow the rule of each sect in questions arising among its
members . . . . . . . . . "
37
PAGE
44
as regards family laws
principlesrelating to, 14-5
. .
Administration of justice-
of Imam defined by law 388
powers
appointment of Qadi " See Qadi.
Agency 321-2
Agency-
authority 240
agent acting in ignorance of withdrawal of
in a suit 316
parties 316
termination of, as regards third
Ahlu-1-Hadith"
176
give analogy very narrow scope
make extensive use of traditions 176
29
gave literal and narrow interpretationto traditions
29
gave a narrow margin to doctrines of agreement and analogy
'
Musnadul-Imam Hanbal ',great work of , . .
30
Analogy "
interpretation 138-9
distinguishedfrom
414 INDEX
PAGE
examples of, .. .. .. .. ..
1G0-2, 1G5
Apostates "
Arbitration (Tahkim)
Allowed in what cases .. ..
.. ..
373
Qualifications of arbitrator . . . . . . . .
373
Atheist "
Bequest "
justificationof, .. .. .. .. ""
311
limitations on, .. .. .. "" ""
311-2
Bukhari "
Caliph "
powers of, 19
has no legislativefunction 19, GO, 382
administration of justiceunder first four, 21
Charity "
Coercion "
PAGE
divorce 234-5
Qg
ai I (I 'lie under, when imputed to coercer 235-6
.
of conduct 355-6
Commentators "
defined 318
proper 215
in name 216
of a contract 285
Contract "
conception of, . . .
" " " " " "
282
.
formation of, . . . . . . . . . .
284
Conditions of "
effect of joint .. .. .. .. ..
288
418 INDEX
257
discharged from personal obligations
in specie 257-8
obligations of, in r" pi rty recoverable
in of benevolent act, 258
,
respect cease
258
,
in respect of wrongs
258
rights of,
258
succession to,
GO
definition of,
constituents, conditions and signs of law 210
causes,
Deposit-
318
nature of,
Divorce-
in mistake 225
in 230
jest
coercion 230
under
328, 335
husband has a right to,
wife's right to, 328, 334-5
be clogged 333-4
husband's right may ..
335
strongly condemned
limitations 33G
on, ...
336
talaq is of two kinds
what is irrevocable, 337
337
in jest
in intoxication 337
pronounced
result of the literal interpretationby Hanafis of law of, 337-8
Ila "
see 1 1 a . .
Zihar "
see Zihar.
of, 338
pronouncement
effect of the rules laid down by juristson, 340
Dower "
PAGE
Easement "
acquired by prescription . . . . . . . .
281
lost by disuse . . . . . . . .
. .
272
enjoyment of, .. .. .. .. ..
272
Embryo "
defined .. .. .. .. .. ..
116
must be extendible .. .. .. .. ..
150,152
more than one, of a particularsentence of law . . . .
151
what may be, . . . . . . . . . .
151
how known . . . . . . . . . .
152
established by ijrna' . . . . . . . . . .
153
ascertained by elimination . . . . . .
. .
154
must be proper and appropriate . . . . . . . .
154-5
Equity (Istihsan)"
recognized by Abu Hanifa . . . . . . . .
25
defined . . . . . . .
. . . . .
164
Evidence "
juristictheory relatingto, . . . . . . . .
374
right and duty to give . . . . . .
. .
375
different kinds of, . . . . . .
. .
376
conditions relating to capacity of a witness . . .
376
.
challenged . . . . . . . .
. .
377-8
registerof men of rectitude to be kept . . . . . .
373
120 INDEX
PAGE
circumstantial) 381-2
documentary, 382
admission "
estoppel 382
Executor "
Fainting "
Forgetfulness "
Fraud "
356
principlesof liability
for
God"
the only lawgiver in Islamic system 52
madan Jurisprudence 51
Guardianship (Wilayat)
what is, 344
of person-
of property "
Hadd"
forms of , 362
meaning of, 17
Hedaya "
Heresy "
Hiba (Gift)"
whether delivery of seisin is necessary for, 46
defined 297
422 INDEX
PAGE
juristicallytreated as contracts ..
297
defined
'Iddat"
Idiot-
Ignorance "
Of law "
PAGE
Of facts"
a good excuse, . . . . . . . . . .
239
Ijara "
See Hire.
denned .. .. .. .. .. ..
115
texts in support of, .. .. ..
.. ..
115
religion .. .. .. .. .. ..
116
122
proof of , . . . . . . . . . .
134
defined . . . . . . . . . . . .
168
11a"
what is, .. .. .. .. ..
338
effect of, .. .. .. .. .. ..
338
Iman "
See Faith.
Imbeciles "
who 245
are, .. .. .. .. .. ..
PAGE
Imposts "
Infant "
marriage of , .. .. .. .. ..
243
Inheritance "
i. sharers "
who are, .. .. .. ..
346
. .
who are, .. .. .. .. ..
347-8
different classes of, . . . . . . . .
347
doctrine of return .. .. .. ..
348
who are, . . . . . . . . .
348
order of succession among, . . . . . .
348
successor by contract .. .. .. ..
348
by acknowledgement of relationship . . . . . .
348
devisee . . . . . . . . . .
348
public treasury .. .. .. .. ..
348
exclusion from, .. ..
.. .. ..
348
total or partial . . . . . . . . . .
349
principles of, .. .. .. .. ..
349
PAGE
significance of 104-5
how far determined by goodness or badness of an act 105-G
acts may be good or bad per se or with reference to something
intrinsic or extrinsic 106-7
acts prohibited as bad per se are void 108
acts prohibited as bad with reference to some quality are valid,
but vitiated 108
Authentic "
Intoxication "
whether progressive . . . . . . . . . .
191-2
Istadla'l"
defined 166
Insolvent "
who is, .. . . .. . . ..
246
Intention "
defined 220-1
PAGE
complete, when .. .. .. .. ..
223
Istisna' "
what is, . . . . . . . . . .
293
defined . . . . . . . . . . . .
228
in avoidable originating acts . . . . . . . .
229-30
in non-avoidable originating acts not involving property ..
230
in non-avoidable originating acts involving property . . . .
230-2
incidents of, . . .
. . . . . . .
271-2
Jurist (Mujtahid)"
meaning of, .. .. .. .. ..
118
a source of law . . . . . . . . . .
54
Kafir-
literal meaning of, . . . . . . . .
52
Law "
Classification
of "
11. of evidence
12. of procedure
13. constitutional,
14. international,
Sources of"
1. revelation "
before Islam 70
of, 147
purpose
conflict between spiritualand secular, 148
of embryo 52
. .
217
receptiveand active,
INDEX 429
PAGE
of full, 218
person
particular circumstances affecting, 218
fainting 225
on, ..
mistake on,
225
..
coercion on, .
232-7
.
Infants "
See Infants.
the precepts 17
Second period"
collections of the Qur'an 19
Limitation "
Lunatic "
244-5
Maintenance "
deduction 28
Marriage "
in jest 230
agency in, . .
315
theory of, . .
327
cannot be contingent . .
328
separation "
See Separation.
dissolution of, by wife 338
Alines "
Mortgage "
See Pledge, Baiul-wafa.
Motive "
defined 222
encouraged by Abbasides 22
what it discusses, 49
Muqallids "
Murder "
Musha' "
doctrine of, should be confined within the narrowest limits 46, 29S
meaning of, 298
gift of, 298
Muslims "
Negligence "
defined 221
Non-Muslims "
defined 249
Nature of, . .
289
Nuisance "
Obligations "
Offence "
PAGE
claim "
defined 365
and
plaintiff defendant defined 365-6
who may prefer, 366
parties "
hearing "
decrees "
defined 371
limitation .. ..
374
light .. 2G4
air 264
lire 264
wild grass 265
water 266-6
PAGE
266
public roads
institutions dedicated to public 266
207
Most objects of nature may be,
207
lies nullius open to use of all,till turned into,
and 2(,7
1. moveable immoveable,
iixtures treated as immoveable, 208
Possession "
of a licensee 270
of Musha 279
Procedure in settling
disputes "
plaintiff
to adduce proof
oath absolves from liability
torture resorted to, to extort confession
decision of diviner sometimes resorted to,
Punishment "
principleof, is retaliation
for theft
for adultery among Jews
Marriage "
l'AUE
Dower "
device to evade, 8
Divorce "
Effect of, 11
..
Period of 'iddat 11
Adoption "
Effect of, . .
12,15
Infanticide "
female, prevalent 12
Property "
Sale "
Lease "
Kinds of . .
14
,
Usury "
power unlimited 15
Prescription "
Qadi"
'
decision of a case by, does not determine the law on the point ..
179
of deputy, 389
appointment . . . . . . . "
quasi-judicialduties of, . . . . . . . .
390
Qur'an "
See Interpretation.
meauiug of, . .
bow preserved
circumstances under which, was collected
commentaries on,
Repeal "
rubs as to . . .. .. .. .. ..
111-2
examples of, .. .. .. .. ..
112
of Qur'anic or traditionary law, by Ijma' or analogy not possible. .
113
of Qur'anic text, may be of its words or only of the law ..
114
Retaliation "
Revenue "
sources of , . .
384-5
zakat "
jiziya "
'
ushr "
Icliiruj "
Riba"
doctrine of, 41
PACK
Hanatis 295
by . . . . . . " " " "
Shafi'is confined the doctrine of, to articles of food, gold and silver 295
in 295
principal rules respect of, ..
.. .. ""
and non-Muhammadans .. .. ..
295
..
RightS-
are the media through which law exercises its function . .
5G
of, 57
meaning .. .. .. .. "" ""
of law 20(5
private, classified according to purposes .. ..
200
according to subject-matter . . . . " " . .
Sale (Bai)-
Validity of a contract of Salam, ..
145
defined 290
Salam "
Meaning of, . . . . . . . . . .
290
PAGB
Sanction "
Separation (Furqa't)
I \i'\\ effected 339
Shafi'i
Shufa' "
See Pre-emption.
Slander "
Slave "
PAGE
foi
liability See Coercion.
i accusation "
scale of 160
restitution "
Traditions "
the six correct collections of, served to draw the four schools
together .. .. ""
31-2
.. ..
of
qualifications narrator of, .. .. .. ""
73
Trust"
Usufruct"
279
Ownership of,
INDEX 443
Wahabis "
See Ahlul-Hadith.
Waqf"
interpretation by jurists of texts relating to, for donor's family 47, 91
opinion of Ghairu Muqalids 177
defined 303-4
objects of . .
304-5
,
of, 305-6
scope . . ..
Water-
Rights to, ..
265
Way"
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