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Art. VII.—An Abstract of Muhammedan Law
Published online by Cambridge University Press: 14 March 2011
Extract
The Muhammedan law is divisible into two parts perfectly distinct— the religious and the municipal. On the first numerous works have been written, and it must therefore seem singular that the latter has never, as far as I am aware, attracted attention; for the real nature of the state of society, and of the government in Muhammedan countries, can never be clearly understood, unless both the religious and the municipal law are taken into consideration. To supply, therefore, this defect, is the intention of the following pages; and sensible as I am of the very imperfect manner in which it has been executed, I can only trust, that any information on a subject not before discussed will prove acceptable to the Society.
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References
page 83 note 1 SirJones, William's Works, vol. iii. p. 510.Google Scholar
page 84 note 1 Sirjones, William's Works, vol. iii. p. 508.Google Scholar
page 85 note 1 The Persian version and commentary consist of four volumes, and are, at least, three times larger than the original work; and though the first volume has not been translated, Mr. Hamilton's English translation fills four quarto volumes.
page 88 note 1 The Kuriltái of the Tátár tribes fell into disuse after their conquest of Persia.
page 89 note 1 It is also held that a king is not liable to punishment for any offence which he may commit, because punishment belongs to God, and is merely intrusted to a king in order to deter men by example; but this advantage could not he derived from the king inflicting punishment on himself. He is, however, responsible whenever he infringes the rights of individuals; and is therefore subject to the fine for blood, and to compensation for injuries to private property.
page 89 note 2 The prerogatives of a Moslem king scarcely admit of definition; for he must either regulate his conduct according to law, or he must exercise an arbitrary power which knows no other bounds than the resistance of the people.
page 90 note 1 The making war on infidels being a duty incumbent on all true believers, the Hidáyah discusses at great length the duties of the king as generalissimo; but I have not thought it necessary to make any abstract of this part of the work, nor of what relates to war, captured property, peace, &c. It ought, however, to be observed, that a Muhammedan prince is not at liberty to conclude a permanent peace with infidels, because such a peace would be an infringement of the positive command of God, which enjoins war to be carried on against infidels; but, in imitation of the prophet, who concluded a truce with the men of Mecca for ten years, the prince may also agree to a truce for this length of time, but no longer; and also, according to the example of the prophet on that occasion, should it be expedient for the true believers to commence the war previous to the expiration of the truce, the prince may do so, on giving intimation of his intentions to the enemy.
page 93 note 1 I am not aware of any European term which corresponds with the duty of this description of men, which consists in their giving decisions on all points of law or doctrine which may be referred to them.
page 94 note 1 This expression is inaccurate, and may convey an erroneous notion of the Muhammedan religion; it must, therefore, be remarked, that in it there are neither rites nor ceremonies, nor any pastoral or episcopal duties corresponding to those of other religions.
page 94 note 2 Deeds do not seem to have been originally in use amongst the Muhammedans, and their place was therefore supplied by declaration before witnesses.
page 96 note 1 It must, however, be recollected that the magistrate may take cognisance of every act, whether it be contra pacem regni, or merely contra bonos mores.
page 98 note 1 In the Arabic language there is neither a present nor a future tense.
page 98 note 2 In the Hidáyah, it is ten days after being purified from the third catamenia.
page 101 note 1 I must also dissent from his opinion, that “the cases and examples cited with respect to them are not exclusively restrictive to slaves, but may be considered in the light of so many legal paradigms, equally applicable, in their construction, to any other articles of commerce or exchange;” because the right of a master in a slave or freedman is most carefully distinguished by Muhammedan jurists from the right which an owner possesses in any other kind of property, and consequently every act relating to them must form a special case, to be decided by rules perfectly inapplicable to the use and conveyance of any other species of property.
page 102 note 1 Under the term necessaries, the Muhammedan law understands a place of residence, food, and clothes, which should always be suitable to the fortune of the master. The Muhammedans, however, in general strictly follow the precept of the prophet, and treat their slaves in the same manner as they treat the rest of their family.
page 109 note 1 To these impediments must of course be added lunacy, minority, and fraud or compulsion.
page 115 note 1 In the Hidáyah, it is laid down that an oath taken in any other manner than in the name of God is invalid. The Kází may either direct the person taking the oath to swear simply by God, or he may require him to add in corroboration of it some of the attributes of God; but no particular time or place is necessary in order to give validity to an oath. Unbelievers are to swear simply by God, in whose existence all people believe; but a Jew is to swear by saying, I swear by the God that revealed the Pentateuch to Moses; and a Christian by saying, I swear by the God that sent down the Gospel to Jesus.
page 115 note 2 There is, however, an exception to this rule in all disputes that relate to buying and selling, for in these cases the oath must be tendered both to the vendor and vendee. This is, however, conformable to the most received definition of a defendant, “one who denies,” as in such cases the vendor and vendee equally deny the claim made by each other, and consequently each is both plaintiff and defendant.
page 116 note 1 I here merely abridge the different passages in order that the doctrine of the Muhammedan law on this important point may be the more clearly shewn. Mr. Hamilton's translation of this book, which, it must be admitted, is often very obscure in the original, does not appear to me to convey in many places the real meaning of the author, or to render it fully intelligible to the English reader.
page 117 note 1 By this phrase is understood homicide and mayhem, and certain offences specifically mentioned in the Koran, which the law presumes that no Moslem would commit, and therefore to substantiate them direct and positive proof is required in order to remove all doubts; but in misdemeanours and injuries against property, the law supposes that the frailty of man and self-interest might occasion even a Moslem to deviate from rectitude.
page 118 note 1 The received opinion seems to be that a witness cannot give evidence to a writing, though signed by himself or in his hand-writing, unless he actually recollect the transaction to which it relates.
page 119 note 1 But they may give evidence in favour of each other: Sháfi'í, however, insists, that an unbeliever is unworthy of credit, and that he cannot therefore be a witness in any case.
page 119 note 2 The examples given of these actions are making water or eating on the high road, and going naked into a bath.
page 119 note 3 This is a perplexing passage, because, as it appears from the preceding rule, and will appear more clearly hereafter, there is no act whatever which is not subject to the inspection and animadversion of the Kází. I conceive, therefore, that the true intention of this rule is, that a defendant shall not be allowed to accuse a witness of any other offence than such an one as renders him incompetent.
page 120 note 1 The jurists of the Hauífah sect found this rule on a singular argument deduced from the definition of evidence; for they argue that possession is of itself a proof of the right, and that in such a case the right cannot he the subject of evidence, because evidence can only take place in cases where proof is required. But the right of the plaintiff is uncertain, and therefore susceptible of proof, consequently his evidence shall be admitted, and that of the defendant rejected. Shafi'í, however, argues more correctly, and maintains that as the evidence on both sides is equal, that of the defendant must be admitted, because the possession is a corroborative proof of his right to the property. This opinion, it may be observed, is most consonant with the principles of the Muhammedan law, which consider delivery of possession as an essential requisite in all transfers of property.
page 121 note 1 In using the word contract, it may be necessary to observe that the Muhammedan law considers a contract according to the definition of the civil, and not of the English law; and that consequently this observation of Blackstone does not apply to it, a “nudum pactum, or agreement to do or pay any thing on one side, without any compensation on the other, is totally void in law.” For, according to the Muhammedan law, a contract may be either with or without a valuable consideration.
page 122 note 1 Mr. Hamilton has improperly introduced the term usufruct into this definition; for though it applies to several of the transactions included by the Muhammedan law under the title of hiring, it will not apply to all; for it cannot be said that a workman has an usufruct in his work.
page 123 note 1 That is, whether diligently or negligently.
page 124 note 1 Sháfi'í dissents from this opinion, and holds that a pledge is the same as a deposit, and that the pawnee is therefore not answerable for it.
page 126 note 1 I must acknowledge that I do not clearly understand the distinction drawn by the Muhammedan jurists between a capital consisting of cash and one consisting of stock, on which several rules and much subtle reasoning are founded. The following is one of their arguments, which I give in Mr. Hamilton's words: — “If a contract of reciprocity in goods and effects were held to be legal (as maintained by Málik), it would necessarily induce a profit upon a property concerning which there is no responsibility; because upon each partner in reciprocity selling his own particular capital (consisting of goods and effects), if the goods of one partner produce a greater price than the goods of the other, the excess of profit upon the goods of the former would be due to the latter; and this would be a profit from property for which the person who gains by it is not responsible, and in which he has no right: because in this instance the contract is connected with actual goods, and not with the semblance of them, such as debts; and the goods are a trust in the hands of each partner respectively: whence it is evident that a profit is induced upon property, concerning which there is no responsibility. It is otherwise with cash; because whatever either partner may purchase with the capital stock, consisting of cash, the purchase thereof is not connected with the actual capital, but with its semblance, namely debt (since the price of it is a debt). Now, the purchase being connected with the semblance of the capital (namely, debt), and the other partner being also liable to be called upon for it (as a contract of reciprocity involves mutual bail), it follows that the consequence objected is not induced, since this is a property in which there is responsibility.”
page 130 note 1 I prefer employing the unusual words, caution for this kind of security, cautionary for him who gives it, and cautioner for him on whose account it is given, rather than the term bail used by Mr. Hamilton; because, as it will be observed, this security does not correspond with the English law definitions either of bail or recognisance.
page 130 note 2 A creditor, of course, would always prefer to receive security for the debt rather than caution for the personal appearance of the debtor.
page 138 note 1 It ought, perhaps, to be remarked, that the Muhammedan law divides public wrongs into five classes: 1. Apostasy; 2. Crimes against the prince, which include highway robbery and rebellion; 3. Crimes subject to kisas, or retaliation, which include homicide and mayhem. 4. Hudud, or penalties prescribed by the Korán for certain offences, viz. theft, adultery, fornication, drinking intoxicating liquors, and kazf, or faslely accusing a woman of adultery; and 5. Tazir, or discretionary punishment for petty offences, and such as are not comprised in any of the preceding classes.
page 139 note 1 In the Persian version, published at Calcutta, of that part of the Fitatei Alumgiri, which relates to offences, the following instances are given; striking a Moslem, knocking his turban off his head in the bazár, false imprisonment, &c.; or calling a Moslem an infidel, a liar, a tbief, &c. But it is doubted whether calling him an ass, a hog, or a similar name, is punishable, because it is self-evident that he is neither the one nor the other. It is added, that the making of any writings or pictures, which are intended to expose a Moslem to ridicule, are also punishable.
page 140 note 1 In the Hidáyah, it is laid down that the stripes ordered by the Kází shall, on all occasions, be inflicted with a whip (or rod) without knots; that a man shall receive them standing, and naked to the waist; and a woman sitting, and her outer garment only taken off. They must be inflicted moderately, neither with too much severity nor too much lenity; and if the offenders be sick, or intoxicated, or pregnant, the punishment must be delayed until their recovery.
page 140 note 2 This, of course, applies a fortiori to goods taken actually from the person.
page 141 note 1 In all these cases, however, where the offence does not amount to the legal crime of theft, the offender is liable to such discretionary punishment as may be adjudged by the Kází.
There is a remarkable inconsistency in the definition of punishment given by Mnhammedan jurists; for it is at one time considered as authorised by God, in order to deter men liy its example from sin; and at another, as in the present instance, as due to individuals, in consequence of any injury that they may have sustained. Had they adhered to the first definition in the case of theft, it is evident that the mere transfer of the right in the goods stolen to the thief could not possibly alter the criminality of the act, and that he was therefore still liable to punishment, in order to serve as an example to others; but if punishment be the right of individuals, it necessarily follows that they may either claim or abstain from claiming it. There is, at the same time, a peculiar, but humane, subtilty in considering the judgment of the Kází as complete in itself without execution, since by it is fully established the right of the claimant, and it then remains to the latter to remit or enforce the execution.
page 143 note 1 This passage applies to wilful murder; for Muhammed has said in another place, It is not lawful for a believer to kill a believer, unless by mistake.
page 143 note 2 The Persian translator of the Fitawi Alumgiri asserts, on the authority of the Jama ul Remúz, that none of the accomplices in a wilful murder, except those who actually inflict the mortal blow, are subject to retaliation: but this opinion is certainly contrary to the received doctrine of Muhammedan law.
page 143 note 3 Abú Hanífah maintains, that drowning another, or causing his death by any other means than that of a weapon or its substitute, is not wilful murder; but Abú Yúsuf and Muhammed are of opinion that it is, and their arguments apply equally to all other kinds of violent death in whatever manner it may be inflicted, otherwise than by a weapon or its substitute. It is also evident that the prophet does not, in any place of the Korán, restrict wilful murder to a particular mode of killing; for his expression is general—whoso killeth a believer designedly. The means, however, by which the violent death was caused must be proved, according to all Muhammedan jurists, in order to convict a man of wilful murder. It may be proper to add, that the Muhammedan jurists, in describing what I have termed wilful murder and unintentional homicide, have adopted the very terms which are used in the Korán. 
, designedly, and 
, hence 
, killing by design, and 
, killing by mistake; the only two distinctions found in the Korán.
page 144 note 1 In opposition to the jurists of the Hanífah sect, Sháfi'í maintains the horrid doctrine, that the very same wounds must be inflicted on the murderer that he inflicted on the deceased, and that should these not prove mortal, his throat is to be cut.
page 145 note 1 In the three first cases, besides the fine, the person who commits the homicide is liable to expiation; that is, the freeing a slave, or fasting for two consecutive months.
page 145 note 2 The comniitter of the homicide also pays his proportion of the fine.
page 145 note 3 This reasoning might apply correctly to the Arabs in Arabia; but when the Muhammedans and their converts became dispersed over the greatest part of Asia, it must have been rendered every day more inapplicable by the connexion of families and tribes being in a great measure dissolved: and it is therefore difficult to under stand how this law could have been ever carried into effect, as the payment of four dirhems from each individual of a family present in one place could scarcely ever have amounted to the sum total of this fine. In defect, however, of a sufficient number of the family of the committer of the homicide, the vicinage might be called upon to pay the fine.
page 147 note 1 Retaliation applies to every injury that can be inflicted on the person, and admits of no exceptions as in the English law: “We have therein commanded them that they should give life for life, and eye for eye, and nose for nose, and tooth for tooth; and that wounds should also be punished by retaliation.”— Korán, chap. v.
page 148 note 1 The witnesses are to commence the lapidation, in order that if they should have erred in their testimony, or testified falsely, compunction and remorse may compel them to retract their evidence.
page 151 note 1 Abú Hanífah holds, that if any part of this property has been acquired during his apostasy, such part is to be confiscated to the public treasury; but this opinion is controverted by Abb Yusuf and Muhammed.
page 154 note 1 Except in the case of receiving stolen goods, knowing them to be stolen, it is impossible to understand on what principle of justice, as far as regards the individual, an accessory after the fact is subject to punishment; and it may be reasonably doubted, whether the good of the state renders such punishment expedient or necessary. The Muhammedans may, therefore, be excused in not having discovered either its expediency or necessity.
page 155 note 1 Barbarous as the lex talionis must be admitted to be, yet the criminal has by it a much better chance of preserving his life than if he were dependent solely on the mercy of the prince.
page 156 note 1 Analysis of Bengal Regulations, Part ii. pp. 334, 335.
page 156 note 2 Ibid. p. 332.
page 156 note 3 Ibid. pp. 331, 332.
page 157 note 1 Analysis of Bengal Regulations, Part ii. p. 328.Google Scholar
page 157 note 2 “The urf, or customary law, which is administered by the king, his lieutenants, the rulers of provinces, governors of cities, lay magistrates of towns, managers, and collectors of districts, and heads of villages, aided by all the different subordinate officers who act under their authority, bears some resemblance, in its cognizance of petty offences, to that kind of authority which, in better-ordered communities, is vested in magistrates of police; but the magistrates in Persia always exercise the chief local authority, and consequently are above the law instead of being checked by it. The decrees are instantly enforced by the strong hand of power. They are prompt and arbitrary in their decisions; and as they seldom bestow much time in the consideration of evidence, they are continually liable to commit injustice, even if their intentions are pure.”—SirMalcolm, John's History of Persia, vol. ii. pp. 447, 448.Google Scholar
page 157 note 3 Voyages du Chardin, , vol. vi. p. 70Google Scholar, M. Langlés observes in a note on this passage—“Il est assez étrange que l'on ne trouve nuls rensteignements snr le ourf dans le volumineux traité de jurisprudence Musulmane, intitulé The Hid´yah or Guide, ni dans Tableau Général de l'Empire Othoman.” It would have been much stranger if any notice had been taken of this “raison du plus fort,” in works which rest professedly on the writings of Abú Hanfíah and his disciples, when these are founded solely on the Koran, the traditions, and established decisions.
page 158 note 1 Analysis of Bengal Regulations, pp. 223, 224.Google Scholar
page 158 note 2 Ibid. p. 228.
page 159 note 1 Many instances are mentioned in history of the patience and affability with which Muhammedan princes and their ministers received complaints, and of the striking justice of their decisions. With regard to the emperors of Delhi, the author of the Seir Mutakherin remarks— “The prince and his ministers bestowed more attention upon the administration of justice than on any other part of the government; nor did they suffer that injustice should become justice by prescription, or that any one should oppress another at his will; they took care to appoint proper persons in every branch of such an office, and had rendered extortion and bribery so odious, that to call one a bribe-taker was resented much more than if it had been the most opprobrious imputation. It was, in consequence of such regulations and attentions, that such men of virtuous principles were found out as reckoned bribery amongst the highest reproaches, and thought it little short of infidelity and apostasy.” “It was so very easy for poor men to arrive at the very feet of the emperor, and to obtain redress, that when, notwithstanding all these precautions and these attentions, some oppression chanced to take place, we have instances of oppressed ones, who would sometimes come from two or three months' journey and obtain audience, and expose their complaint, and were they the poorest of men they were sure of being righted against the most powerful adversary.” Not having the original, I quote the translation, notâ manûs, vol. ii. p. 563.Google Scholar
page 160 note 1 It is merely mentioned incidentally in the Hidáyah.
page 160 note 2 It will be recollected that fornication and adultery must be proved by four male witnesses.
page 161 note 1 The deciding on presumptive evidence may in most cases be trusted with safety to a jury; but the not intrusting it to a single individual, who must frequently be undistinguished by either ability, learning, or capacity, must certainly be con. sidered as a very humane provision in the Muhammedan law.