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Books > Language and Literature > Islam > The Principles of Islamic Jurisprudence (According to The Hanafi, Maliki, Shafih & Hanbali Schools)
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The Principles of Islamic Jurisprudence (According to The Hanafi, Maliki, Shafih & Hanbali Schools)
The Principles of Islamic Jurisprudence (According to The Hanafi, Maliki, Shafih & Hanbali Schools)
Description
About the Book

This book is the substance of the author's lectures delivered in the University of Calcutta, as Tagore Professor for the year 1907. It contains XII chapters. Chapter Ist gives an idea of Islamic Theology. IInd to Vth contain an exposition of the science of law. In VI to XII explain the fundamental theories and legal ideas in which the different departments of the Islamic system are based. The ideas of Islamic jurists are accurately represented in their own language and the same time it is endeavourd to make their meaning quite clear throughout book.

PREFACE

This book embodies the substance of the lectures which I delivered in the University of Calcutta, as Tagore Professor for the year 1907, and I greatly regret that there should have been so much delay, due to reasons altogether personal to myself, in the publication of the book.

This first Chapter is intended to be introductory, and its usefulness will, I trust, be apparent, especially with reference to the topics discussed in Chapters XI to XII. I ought to mention that, in writing the earlier portion of the first Chapter, I derived valuable suggestions from Mr. Macdonald's excellent treatise on Islamic Theology.

Chapters II to V contain an exposition of 'Al-Usul' or the Science of Law, as developed by the Islamic jurists between the eighth and the fourteenth centuries of the Christian Era. Much of this part of the book is practically a translation of Sadru'sh- Shari'at's 'Taudih' which was written sometime in the fourteenth century and is recognized as a standard work on the subject. The other writings on Usul which I have largely consulted are Taftazanis' 'Talwih', which is a commentary on 'Taudih', Fakhru'l- Islam's 'Al-Usul' and its commentary 'Kashfu'l-Israr', 'Musul- lumu'th-Thabut', by Muhibbullah and its commentaries by Bahrul Ulum and others, 'Attaqrir-wa't Tahbir', by Ibn Hammam, 'Nuru'l- Anwar', by Mullah Jiwan; 'Jam'ul-Jawami', by Tajuddin Subki with its commentary by Al-Mahalli and the gloss known as 'AI-Ayatu'l- Bayyinat' and 'Al-Mukhtasar' by Ibn Hajib with Qadi Udud's commentary thereon.

In writing the remaining chapters I have not had the same invaluable help of these eminent jurists, who did not think fit to pursue their investigations beyond the limits of the topics dealt with in Chapters II to V. In Chapters VI to XII; I have endeavoured to explain the fundamental theories and legal ideas on which the different departments of the Islamic system are based and to set forth the important principles which impart to the Islamic legal code, under its several heads, its peculiar features. These theories and principles are to be found interspersed in such authoritative works on Islamic law as the 'Hedaya', the 'Sharhu 'l Viqaya' and others and also in the various treatises on Usul, already mentioned. It is always difficult to know exactly where one should draw the line in referring to the rules of law in illustrating the general legal ideas and relations which form the Proper province of jurisprudence and it will be seen that I have referred to such rules in somewhat profuse detail. My reasons for doing so were two-fold; in the first place, the jurisprudence I have had to deal with relates to one particular system, and in the second place, the Islamic Law is so seldom read with any care that I felt I should not be justified in counting on the possession of that quantum of knowledge of its rules which is necessary for the purpose of following the discussions of the jurists, on the part of the ordinary student for whose benefit the Tagore Lectures were primarily instituted.

I ought to state that throughout this treatise I have endeavoured to represent the ideas of Islamic jurists as accurately as possible, and as far as possible in their own language, and at the same time to make their meaning quite dear to those who are only conversant with the modern forms and modes of legal expression. If I have failed in my efforts in either direction, I would appeal especially to the indulgence of those scholars who are familiar with the difficulty of translating the ideas of a technical and abstruse subject expressed in Arabic into a modern European language.

In spite of the shortcomings of this treatise, I hope that it will be of some practical use in helping those who are desirous of studying the Islamic law, to study it as the subject of a scientific system instead of treating it, as is the habit, I am afraid, of many Iawyers in India, as an arbitrary collection of rules and dicta based on no intelligible data. Further, I venture to think that the contributions made by the Islamic jurists to legal thought will have a special interest to those who are interested in the science of jurisprudence, having regard not only to the age in which those jurists lived, but the nature and the difficulties of the task which they set before themselves, namely, to construct the science of a system which is not only entirely self-contained, but in which law is an integral part of religion, so that Islamic Jurisprudence purports to be in fact a science of man's rights and duties both spiritual and social. I may also be allowed to hope that the book will be of some assistance to those who, though not directly interested in the study of law or 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 title, who form the great bulk of the Muhammadan population of the world.

In conclusion I wish to express my indebtedness to the Rev. Canon Edward Sell, D.D., M.R.A.S., in charge of the S.P.C.K. Press and Author of the 'Faith of Islam', who was kind enough to revise the transliteration of the Arabic words, and to Messrs. S. Ranganadhaiyar, B.A., B.L., High Court Vakil, and P.Kundu Panickar, B.A., M.L., Advocate, who prepared the Index, the Glossary of Arabic words, the List of Original Authorities referred to or mentioned, the Table of Cases, the Contents and the Errata.

CONTENTS

PREFACEiii-v
Prefaceiii-v
List Of Original Authorities Referred To Or Mentionedviii-ix
CHAPTER I
History Of The Growth Of The Islamic Legal System1
SECTION ICustoms And Usages Of The Arabs Before Islam2
SECTION IILaw And The Science Of Jurisprudence AfterThe Promulgation Of Islam15
SECTION IIIIslamic Law In British India35
CHAPTER II
Science Of Law , Law And Classification Of Laws45
CHAPTER III
Source of Law65
PART I -THE QUR'AN AND THE TRADITIONS
SECTION IGeneral65
SECTION IIInterpretation73
PART II - IJMA' AND CUSTOMS
SECTION IIjma' Or Consensus Of Juristic Opinion110
SECTION IICustoms And Usages131
PART III - JURISTIC DEDUCTION
SECTION IAnalogy132
SECTION IIIstihsan Or Juristic Equity157
SECTION IIIPublic Good159
SECTION IVIstidlal160
SECTION VIjtihad And Taqlid161
CHAPTER IV
Acts Rights , And Obligations184
CHAPTER V
Legal Capacity206
Relation Of Acts To The Mind208
Persons Of Defective Capacity227
CHAPTER VI
Ownership247
Possession261
CHAPTER VII
Acquisition Of Ownership
SECTION IOriginal Acquisition And Prescription266
SECTION IIContracts268
CHAPTER VIII
Family Law310
CHAPTER IX
Torts And Crimes
Torts334
Crimes343
CHAPTER X
Procedure And Evidence346
CHAPTER XI
Constitutional Law And Administrative Law363
CHAPTER XII
The Law Regulation Relations Between Muslims And Non-Muslims372
Glossary Of Arabic Words And Phrases379

The Principles of Islamic Jurisprudence (According to The Hanafi, Maliki, Shafih & Hanbali Schools)

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About the Book

This book is the substance of the author's lectures delivered in the University of Calcutta, as Tagore Professor for the year 1907. It contains XII chapters. Chapter Ist gives an idea of Islamic Theology. IInd to Vth contain an exposition of the science of law. In VI to XII explain the fundamental theories and legal ideas in which the different departments of the Islamic system are based. The ideas of Islamic jurists are accurately represented in their own language and the same time it is endeavourd to make their meaning quite clear throughout book.

PREFACE

This book embodies the substance of the lectures which I delivered in the University of Calcutta, as Tagore Professor for the year 1907, and I greatly regret that there should have been so much delay, due to reasons altogether personal to myself, in the publication of the book.

This first Chapter is intended to be introductory, and its usefulness will, I trust, be apparent, especially with reference to the topics discussed in Chapters XI to XII. I ought to mention that, in writing the earlier portion of the first Chapter, I derived valuable suggestions from Mr. Macdonald's excellent treatise on Islamic Theology.

Chapters II to V contain an exposition of 'Al-Usul' or the Science of Law, as developed by the Islamic jurists between the eighth and the fourteenth centuries of the Christian Era. Much of this part of the book is practically a translation of Sadru'sh- Shari'at's 'Taudih' which was written sometime in the fourteenth century and is recognized as a standard work on the subject. The other writings on Usul which I have largely consulted are Taftazanis' 'Talwih', which is a commentary on 'Taudih', Fakhru'l- Islam's 'Al-Usul' and its commentary 'Kashfu'l-Israr', 'Musul- lumu'th-Thabut', by Muhibbullah and its commentaries by Bahrul Ulum and others, 'Attaqrir-wa't Tahbir', by Ibn Hammam, 'Nuru'l- Anwar', by Mullah Jiwan; 'Jam'ul-Jawami', by Tajuddin Subki with its commentary by Al-Mahalli and the gloss known as 'AI-Ayatu'l- Bayyinat' and 'Al-Mukhtasar' by Ibn Hajib with Qadi Udud's commentary thereon.

In writing the remaining chapters I have not had the same invaluable help of these eminent jurists, who did not think fit to pursue their investigations beyond the limits of the topics dealt with in Chapters II to V. In Chapters VI to XII; I have endeavoured to explain the fundamental theories and legal ideas on which the different departments of the Islamic system are based and to set forth the important principles which impart to the Islamic legal code, under its several heads, its peculiar features. These theories and principles are to be found interspersed in such authoritative works on Islamic law as the 'Hedaya', the 'Sharhu 'l Viqaya' and others and also in the various treatises on Usul, already mentioned. It is always difficult to know exactly where one should draw the line in referring to the rules of law in illustrating the general legal ideas and relations which form the Proper province of jurisprudence and it will be seen that I have referred to such rules in somewhat profuse detail. My reasons for doing so were two-fold; in the first place, the jurisprudence I have had to deal with relates to one particular system, and in the second place, the Islamic Law is so seldom read with any care that I felt I should not be justified in counting on the possession of that quantum of knowledge of its rules which is necessary for the purpose of following the discussions of the jurists, on the part of the ordinary student for whose benefit the Tagore Lectures were primarily instituted.

I ought to state that throughout this treatise I have endeavoured to represent the ideas of Islamic jurists as accurately as possible, and as far as possible in their own language, and at the same time to make their meaning quite dear to those who are only conversant with the modern forms and modes of legal expression. If I have failed in my efforts in either direction, I would appeal especially to the indulgence of those scholars who are familiar with the difficulty of translating the ideas of a technical and abstruse subject expressed in Arabic into a modern European language.

In spite of the shortcomings of this treatise, I hope that it will be of some practical use in helping those who are desirous of studying the Islamic law, to study it as the subject of a scientific system instead of treating it, as is the habit, I am afraid, of many Iawyers in India, as an arbitrary collection of rules and dicta based on no intelligible data. Further, I venture to think that the contributions made by the Islamic jurists to legal thought will have a special interest to those who are interested in the science of jurisprudence, having regard not only to the age in which those jurists lived, but the nature and the difficulties of the task which they set before themselves, namely, to construct the science of a system which is not only entirely self-contained, but in which law is an integral part of religion, so that Islamic Jurisprudence purports to be in fact a science of man's rights and duties both spiritual and social. I may also be allowed to hope that the book will be of some assistance to those who, though not directly interested in the study of law or 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 title, who form the great bulk of the Muhammadan population of the world.

In conclusion I wish to express my indebtedness to the Rev. Canon Edward Sell, D.D., M.R.A.S., in charge of the S.P.C.K. Press and Author of the 'Faith of Islam', who was kind enough to revise the transliteration of the Arabic words, and to Messrs. S. Ranganadhaiyar, B.A., B.L., High Court Vakil, and P.Kundu Panickar, B.A., M.L., Advocate, who prepared the Index, the Glossary of Arabic words, the List of Original Authorities referred to or mentioned, the Table of Cases, the Contents and the Errata.

CONTENTS

PREFACEiii-v
Prefaceiii-v
List Of Original Authorities Referred To Or Mentionedviii-ix
CHAPTER I
History Of The Growth Of The Islamic Legal System1
SECTION ICustoms And Usages Of The Arabs Before Islam2
SECTION IILaw And The Science Of Jurisprudence AfterThe Promulgation Of Islam15
SECTION IIIIslamic Law In British India35
CHAPTER II
Science Of Law , Law And Classification Of Laws45
CHAPTER III
Source of Law65
PART I -THE QUR'AN AND THE TRADITIONS
SECTION IGeneral65
SECTION IIInterpretation73
PART II - IJMA' AND CUSTOMS
SECTION IIjma' Or Consensus Of Juristic Opinion110
SECTION IICustoms And Usages131
PART III - JURISTIC DEDUCTION
SECTION IAnalogy132
SECTION IIIstihsan Or Juristic Equity157
SECTION IIIPublic Good159
SECTION IVIstidlal160
SECTION VIjtihad And Taqlid161
CHAPTER IV
Acts Rights , And Obligations184
CHAPTER V
Legal Capacity206
Relation Of Acts To The Mind208
Persons Of Defective Capacity227
CHAPTER VI
Ownership247
Possession261
CHAPTER VII
Acquisition Of Ownership
SECTION IOriginal Acquisition And Prescription266
SECTION IIContracts268
CHAPTER VIII
Family Law310
CHAPTER IX
Torts And Crimes
Torts334
Crimes343
CHAPTER X
Procedure And Evidence346
CHAPTER XI
Constitutional Law And Administrative Law363
CHAPTER XII
The Law Regulation Relations Between Muslims And Non-Muslims372
Glossary Of Arabic Words And Phrases379
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