-- AN EXPOSITION
BY ATHAR HUSAIN
Published by the All India
Personal Law Bpard,
A Brief History of Mohammedan Law
Originating with the advent of Islam, Muhammadan Law can be divided into four periods. The first period started with the hijrat or migration of the Prophet to Medina (622 A. D.) and concluded with his death (632 A.D. This was the legislative period of Islam when laws were laid down by the Divine Legislator and promulgated in the words of the Quran or by the precepts of the Prophet. The superstructure of the four Sunni Schools of Jurisprudence was constructed on these texts.
The second period commenced from the date of the Prophet's death and extends to the beginning of the four Schools. Broadly speaking it covered the period of Companions of the Prophet and their immediate successors (Tab-i-een).
The third period, falling in the second and third century Hijri, was marked by a theoretical and scientific study of the law and the religion which led to the establishment of the four Schools.
In the fourth period commencing from the fourth century and continuing till now, jurists have been engaged in developing the work of the founders of the Schools and not in any, independent exposition.
In the earlier chapters something has already been said about the Quran and Hadith. It may be mentioned that the sayings. practices and decisions of the Prophet were collected by the authority of the State as was done in the case of the Quran. It was done individually by the Companions, the Tab-l-een and the Muhaddisin (Traditionists); aII were pious, and learned theologians but not necessarily jurists. Amongst the Companions who had acquired eminence by their learning, insight and aptitude in deducing rules of secular and common law were Ali, Umar, Ibn Umar, Ibn Masud and Ibn Abbas. Ibn Masud used to give lectures in Hadith and law at Kufa while other traditionists and jurists taught at Medina. Amongst the pupils of Ibn Masud, AI-Qama and Aswad and later on Ibrahim an-Nakhai, who was known as the jurists of Iraq, had acquired great prominence. Ibrahim had made a collection of the principles of law which he had passed on to Hammed, the tutor of Abu Hanifa.
The four Sunni Schools of Law were established in the reign of [the] Abbasids. The principles of all the four schools are substantially the same and they differ from one another only in matters of detail.
Abu Hanifa an-Nauman ibn Thabit, generally known as Imam Abu Hanifa, the founder of the most important of the Sunni Schools, was born in the year A.H. 80. He was a pupil of Jafar as-Sadiq, a descendant of the Prophet and Hammed, both famous, for their learning and piety. Abu Hanaifa was an exceptionally talented person possessing remarkable powers of reasoning and deduction, great forensic ability and highly developed retentive memory, could make fine distinctions and was acclaimed as [a] master of jurisprudence. A very large number of persons studied in the academy that he had set up, and amongst his pupils, the names of Abu Yusuf, Muhammad and Zufar are intimately connected with the Science of Muhammadan Law. Any matter requiring decision used to be referred to an assembly of forty selected pupils, prominent amongst whom were (besides the three already mentioned) Yahya ibn Abi Zaid, Hafs ibn Ghiyath, Daud at-Tai, Habban, Munzir and Qasim ibn Nuine. It used to be discussed for three days and everyone was allowed to express his views and to give his reasons. At the end of the discussion, Imam Abu Hanifa used to express his views and the arguments in support of them. If there, were any difference of opinion a consensus used to be taken and then the matter was recorded in all details and the verdict was given.
Thus Imam Abu Hanifa, assisted by his pupils, had given verdicts in as many as eighty thousand matters. The Committee was entrusted with the task of codification of the laws and the code was completed [in] thirty-years. The problems were not necessarily those which had actually arisen but which could be conceived to arise with expansion of Islam and passage of time. He was considered by his contemporaries to rely less upon the traditions in arriving at legal conclusions and more upon deductions than the other prominent jurists. In fact the jurists of the time were divided into two classes -- those of Hijaz and Arabia proper and those of Iraq. The former were called ‘the Upholders of the Traditions' and the latter as ‘Upholders of private Judgement'. It is not because the people of the school of Imam Abu Hanifa were not fully conversant with Hadith but their acceptance of smaller number of Hadith as source of law was due, as Ibn Khaldun says, "The severity of the tests they applied, the principles that they had laid down for deducing rule of law had confined the traditions within a narrow compass."
His chief work lay in formulating the theories and principles of jurisprudence and [he] was acclaimed as the founder of the Muhammadan Science of Law as it is found today. Though the principle was in operation before his time, he was the first to give prominence to the doctrine of Qiyas or analogical deduction.
He gave a distinctive name and prominent position to the principle by which, in Muhammadan jurisprudence, the theory of law is modified on its application to actual facts and called it Istihsan (lit, preference) which clearly resembles the doctrines of equity and was later adapted by, Western jurists.
Abu Hanifa also extended the doctrine of Ijma (consensus of opinion) beyond what his contemporaries were prepared to concede. Some limited their authority to the companions and some extended it to their successors no farther: Abu Hanifah regarded the principle as valid for every age. When Imam Abu Hanifah died, his funeral prayers were held for ten days and on each day about fifty thousand people attended the prayers.
Muslims of India, Pakistan, Afghanistan and Turkey are mostly Hanafis and quite a large number of his followers are found in Egypt, Arabia, China and Indonesia.
Another great jurist of the time was Malik Thin Anas. He was born in A. H. 95 at Medina and was regarded as the highest authority in Hadith. Imam Malik was not only a traditionist but also a jurist and founded a school of law which exercised considerable influence in his time. The Moors of Spain belonged to his School and there are still numerous followers of this school in northern Africa.
His principles and doctrines were not materially different from those of Imam Abu Hanifa, but he leaned more upon traditions and the usages of the Prophet and the precedents set by his companions. He recognised a principle, corresponding to that of Abu Hanifa's Istihsan, namely, that of public welfare (Maslahat) as a basis of deduction. To the four main sources of law, the Quran, the Hadith, Consensus and Analogical Deductions, he had added a fifth source Isradlal which is a little beyond the scope of analogy.
The third school was founded by Shafi'i. Muhammad ibn Idris Ash-Shafi'i was a pupil of Imam Malik who excelled his master in eminence as a jurist. He had also studied under Muhammad, a disciple of Imam Abu Hanifa. He adopted the middle course between Abu Hanifa and Malik in the use of tradition and analogy and exercised balance of judgement and moderation. He examined, the traditions more critically and made greater use of analogy than Malik and depended more on ljma than Malik. He adopted the principle of Istadlal laid down by Malik and rejected Abu Hanifa's theory of equity of the jurist. He was the first jurist to write a book on Usal, or Principles of Law. His school ranks next in number and importance to the Hanafi School., His followers are preponderant in Egypt and there are quite a few, in other African countries, Arabia and some in India.
Abu Abdullah Ahmad bin Hanbal, known as Imam Hanbal, was born at Baghdad in 164 A. H. He had studied under several masters including Shafi’i. He was more learned in traditions than in the Science of Law. His reputation as a traditionist and theologian spread far and wide. He adhered rigidly to the traditions and his interpretation thereof was literal and unbending. He allowed a very narrow scope to the doctrines of analogy and consensus. A man of great piety but of uncompromising opinions. He was persecuted) by the Caliph AI-Mamun as he refused to conform to the opinions which had found favour in the Caliph's court. He was incarcerated and was physically tortured. He died in 241 A.H. and his funeral was attended by about 9 lakh people. The number of his existing followers is not many and they are confined to certain parts of Africa.
With the death of Imam Hanbal, the age of independent jurists came to an end. The work that has been pursued since then has been of supplementary nature.
[The] study of traditions as a science gathered momentum after Imam Hanbal's death and in [the] course of time, it blossomed into 63 branches of Science. A new band of scholars headed by Abu Abdullah Muhammad Abu Ism al-Buhkhari dedicated their lives to a scientific investigation of this important branch of learning. Zuhri, Malik [and] Ibn Juraij had set the pattern. From the latter half of the third century to the earlier part of the fourth century Hijri, [the] collection, sifting and examination, classification and codification of Hadith was pursued in a spirit of comprehensive thoroughness. Side by side with Imam Bukhari, had worked Muslim, ibnul Hajjaj (d. A.H. 261/D 974) Tirmidhi (d. A.H, 299(A. D. 892), Abu Da'ud (d. A.H. 275/A.D. 888), Ibn Ma’jah (d. A. H. 273(A. D. 886) and Nisai (d. A. H. 303 A. D. 915), the writers of Sihah Sittah, working independently did yeomen's work. This work exercised imperceptibly great influence on [the] jurists and brought the Hanafi and Shafi’i schools closer.
It may be mentioned that the study of the Quran as the primary source of all laws had also engaged the best talents amongst the Muslims and the science of interpretation (tafsir) was regarded as of the highest importance. Commentaries written by Tabari; (d. A.H. 310/A.D. 922), Zamakshari (d, A.H. 538/AD. 1143), Baidawi (d. A.H. 688/A.D.1286), Ghazzali (d. A. H, 504/A. D,1110), the two Jalaluddins and Fakhruddin ar-Razi are well known.
From the fourth century onwards, a succession of jurists applied themselves to the completion of the works of the founders of the schools, particularly the Hanafi, the Shafi’i and the Maliki. This continued among the Hanafis till the age of Qazi Khan who died in the sixth century. One of the last of these jurists was Sadrush Shariat (d. A.H. 750 or A.D. 1344).
They had studied the conflicting opinions of the principal jurisconsults with a view to determine whose dictum should be taken to represent the accepted law. The work had continued unabated even thereafter and principles were laid down to furnish answers in most cases. The close of the fourteenth century marks the age of commentators and annotators who, while explaining the texts expounded the doctrines of the different schools. Jurists like lbn Humam, Ibn Najim and Ibn Abidin had helped considerably to develop the Hanafi law.
Fatawa Alamgiri, compiled under the orders of Aurangzeb in the eleventh century is "as great an achievement of learning, industry and research as perhaps any legal literature can boast of."'
In Islam, ultimate sovereignty rests with God. He is the Creator of the universe with all the multiplicity of creation and beings, all the forces and natural phenomena operating to generate, uphold and sustain life. God is the King, the Holy, the Perfect, the Granter of security, the Guardian, the Supreme, the Most High ... the Creator, the Originator, the Fashioner (Q 59: 23, 24). Human beings cannot claim any rights against Him but man has obligations and is responsible to Him. God has vested everything with its nature. Man is the highest form of creation and everything in the universe has been made subservient to Him (Q. 45: 13).
Being the highest form of Creator, man's true position
and status in this scheme of creation was revealed to him in numerous verses
of the Quran and he was exhorted not to fear but not to worship anyone
save God. Before the advent of Islam, a large section of mankind had given
a very low place to itself. The age of science and the understanding of
the forces of nature and their application to man's service had not till
then dawned. Besides fear and awe of natural forces and objects, which
man was too ready to propitiate, inequalities, rivalries between man and
man and all the ills which self-interest breeds, were rampant,
Cleavages between man and man existed everywhere. Some of the cleavages were the result of man's pride and arrogance and his superiority over others in the matter of prowess and skill, but deep down these distinctions had been fostered by the religions he followed. He was led to believe that his was the chosen race and he refused to acknowledge that God could have provided for the spiritual welfare and guidance of other peoples living on the earth.
It is the distinction of Islam alone that it preached effectively that all mankind is a brotherhood, that there is no race on earth which did not have its prophets and that all human beings have equal rights. Centuries of education and advancement and contact with Islam have eroded many a false notion, but even today, the idea of brotherhood is to many only an ideology to which lip-service is occasionally paid.
The first step that the Prophet of Islam took to restore to man the sense of his own status and dignity in life, was to announce that as a human being, no man was inferior to anyone else, except to the Being who brought him into existence, that the forces of nature, which in one form or the other he was accustomed to propitiate, were intended to be mere handmaids to him in life; that he had the necessary talent in him to control them and never to be over-awed by them and that he should pursue his life with implicit trust in the Giver of that life. Christianity, undoubtedly has done an immerse service to the cause of humanity. It promulgated the idea of Fatherhood but its concept of brotherhood of mankind was vague and half-headed. Furthermore, it could not withstand the Caesarism of Europe which foisted on Christ the unChristian commandment. “Render unto Caeser the things which are Caesar's and unto God the things that are God's." The vision of the kingdom of God, or peace and happiness to every human being in terms of equality, was pushed to the background. From dignity and status in the scheme of creation flow Human Rights. One of these rights is ‘equality,’ both in the moral and legal sense. [All of] mankind has originated from [the same] parents and the wants, needs, desires and sentiments of man are more or less the same all over the entire globe. In a clarion voice, the Quran announced:
"O ye mankind! Verily We have created you male and female and made you tribes and families that ye may identify and care for each other; surely the noblest of you in the sight of Allah is the pious among you who is most mindful of his duty. Allah is knowing, Fully Awake." (Q : 42 :, 2 )Concerning the Quraish, the Prophet of Islam had said:
"Oh men! God has taken away from you the arrogance and pride of ancestry of heathen days. An Arab has no excellence or superiority over a non-Arab save that which is secured to him through God-fearing and righteousness. You are all of Adam and Adam himself was made of clay."In, the sight of God, he alone is superior who is righteous; no other distinctions are recognized, no man-made geographical frontiers stand in the way. Man should not eschew racial hatred and notions of superiority but should a develop catholicity of view and goodwill towards all. The Qur'an calls upon man to remember that all mankind was at first one community, 'then subsequently it stood divided,' and through man's endeavour, to restore that unity (Q: 10:19; 2 :208)
The Prophet of Islam treated mankind as the family of God. All creatures of God are His family "he is the most beloved of God who loveth His creatures." He repeated 'Respect the ways of Allah and be affectionate to the family of Allah and [the] fixed the moral responsibilities on every man, "Everyone of you is a keeper unto every other, and will be accountable for welfare of the fold."
What we call Hunan Rights are certain inherent unchanged and inalienable rights. The[re] have not been conferred on man any declaration of rights or by any constitution or codified uncodified man-made laws of directive principles for the [unrecognised word] no more than recognition of the inherent rights. [The] enjoyment of those rights is essential for the physical, intellectual and spiritual development of man and, the society he lives; it lead[s] him towards his ultimate goal. They represent [a] minimal standard for human society. These rights relate to liberty, security, property and resistance of oppression. When codified, they guarantee inter alia, equal protection of laws, freedom of speech and expression, freedom of worship and religion, freedom of assembly and association, freedom of movement and freedom to follow any occupation, trade or business.
There has been a good deal of controversy over the meaning of the term freedom and whether the[se] human rights are fundamental or absolute and whether they can be restricted or controlled by government in the larger interest of the State and, if so, to what extent. The fact is empirical that freedoms conflict existentially and all the rights may not always be compatible with each other. Freedom is a fundamental right but no-one can approve all kinds of freedoms for everyone for all times. The right to liberty may sometimes clash with other rights and [the] exercise of rights by one may impinge upon the interest of others. No-one can attain whatever he likes unless those who attempt to impede or frustrate his activity are prevented from doing so. The latter requires curtailment of freedom of others to act in any manner they like.
Man is a complex being and the world in which he lives is an even more complex affair wherein the political, the economic and the social aspects are profoundly interrelated. These and allied issues get complex and are often bogged down in a semantic quagmire. Sometimes the very concept of freedom gets confused and at other times the dispute is over differences as to what specific freedoms should be granted or curbed. It is also argued that fundamental rights cannot be treated as unchangeable, for circumstances and presuppositions can change necessitating [the] display of open-mindedness to new considerations and "a receptivity to fresh and emergent interests and [the] awareness of new horizons or knowledge" having a bearing on the issues Rights of freedom, or free speech and assembly, may be fundamental but restrictions have to be imposed on them in order to protect the State from serious injury or destruction.
Consequen[tly] [the] exercise of human rights is dependent upon on public good [and] public welfare may determine their validity. Some say that [the] safety of the people is the Supreme Law and [that] the rights of a government can outweigh the rights of an individual. The restrictions that the government may impose upon them may be reasonable, but they can also be arbitrary and motivated to serve the interest of a despotic government or the majority party in a democratic set-up.
Human rights are not just sentiments or amorphous ideas, for in that case they will lose all efficacy and usefulness. They are based on elementary human needs as imperatives and some of the[se] needs are minimal for sheer physical survival, health and happiness. But if they are not expressed in specific terms, they will remain only abstract and unjustifiable. According to Burke, the real rights of people everywhere to live in a reign of law to be protected in their labour, their property, their inheritance, religious instruction and consolation, [and the] equality of treatment in the undertakings of the state. In modern times the concept has been given a more concrete and universal texture. They are expressed in Charters, Constitutions, Statutes and ancient customs [which are] based on historical experience. From one point of view they confer justifiable rights on the people which can be secured through courts and from another point of view, they constitute restrictions and limitations on governmental action.
Rights, whether natural or civil, can be secured only in a civil social order and not in chaos or in a state of anarchy. The state is needed for their enforcement. The State must, however be guided by certain directive principles, otherwise it can become oppressive ignoring or extirpating the fundamental rights of all or a minority section.
The laws must be conceived in a liberal spirit and draw reasonable balance between individual freedom and social control. For preservation of human liberty, it is the function of the state to recognize the essential and basic rights of the individual and to allow them a free-play to the [fullest] extent possible. The restrictions must not be calculated to gag any individual or in a heterogeneous society to undermine the rights of any community or followers of any particular creed. Where the individual has no human status or the individual soul is not allowed free-play, but is merged or lost in an impersonal mass-soul or mass soulessness, it is a negation of civilization whatever progress it may have made materially or however advanced intellectually certain members or section of the society may be.
The distinction of Islam is that it did not go merely by commonsense presuppositions or wisdom of man-made law. While it advocated [a] rational approach and gave due importance to reason, it did not leave man to eddy about in his own fancies, conjectures. whims or intelligence, but supported and channeled it by divine guidance [that was] brought to man by a chain of divine messengers.
Reason is conditioned by a number of factors -- the intelligence a man possesses, the education he has received, the society in which he lives, the political and economic theories that have appealed to him, not necessarily on [the] grounds of reasoning, but also under the influence of his circumstances and the impact of [the] massive publicity of half-baked truths through [the] various media of communication. The Quran [has] laid down certain fundamentals which were enunciated and elaborated by the traditions of the Prophet and no law can surpass the limits fixed by them or be contradictory to them. There are [a] thousand and one points to which man can apply his reasoning and analytical deductions in farming possitive laws.
In Islam rights are not divorced from obligations. If
the activities of a man are injurious to the cause of others or are hazardous
to the safety of the state, his liberty has to be curtailed, suspended
or curbed. If [the] freedom of speech, [of the] press or assembly is abused
to indulge in canards or to incite people to violence or sedition, the
interest of society or [the] State has to be protected. In a heterogeneous
society, composed of people of different creeds or religions, the right
of worship has to be exercised in a manner that it does not clash with
or belittle the rights of others. Islam says there is no compulsion in
If a man [wishes] to enjoy his basic or civil rights, he has to believe and to discharge his obligations as well. For his own development, man has to be conscious of certain truths of life and to think and act in conformity with them. These verities are expressed in Islam in the form of a few doctrinal beliefs in the unity of God, the unity of creation, the accountability of [one’s] deeds and that everything in the universe has been created for a definite purpose in a masterly plan of creation and [this] implies a specific message to mankind as a whole. Thus man has [a] dual responsibility to discharge. The first is the duty one owes to God, and the second is the obligation to mankind. The former expresses itself in a process of self-development, physical, intellectual and moral, and the second lies in developing a social, conscience and consideration for others.
The two responsibilities are not independent of each other but are, in fact, two facets of one and the same attitude towards life. Every action of man assumes a spiritual significance and the distinction between good and evil, that is of being mindful of [one’s] dual responsibility, or not to be mindful of it, has to be upheld in every sphere of activity -- physical, intellectual, social, economic or political in order to serve the interest of unity in life and to usher [in] happiness. As is the case of the individual, the criterion of superiority of a community lies in the character of the endeavour it makes to be useful to others. The Prophet of Islam advises "in loving devotion to God, live a united life as brothers unto each others." Fear of God and one's own conscience, if it has not been sullied, warped or deadened by one's own follies, vices and selfish interest, are sure guides.
It will appear that Article I of the Universal Declaration
of Human Rights stating that all human beings are born free and equal in
dignity and rights. They are endowed with reason and conscience and should
"act towards one another in a spirit of brotherhood," is strictly in conformity
with the principle enunciated by Islam fourteen hundred years back. The
difference lies in the fact that while Islam gave it a religious sanction
to remind man that the world is God's kingdom, that He is Fully Knowing,
Ever Watching and has not taken a holiday and that man is the vicegerent
of God on earth and he has to play his role sincerely and seriously in
a spirit of humility and devotion to God.