The Sharia Today

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British Institute of International and Comparative Law

The Shari'a TodayAuthor(s): J. N. D. AndersonReviewed work(s):Source: Journal of Comparative Legislation and International Law, Third Series, Vol. 31, No.3/4 (1949), pp. 18-25Published by: Cambridge University Press on behalf of the British Institute of International and

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THE SHARI'A TODAY 19

reached the rule concerned was regarded as divinely established, by the doctrineof the infallibility of the Muslim community as an whole or of its doctors of lawin particular--and this agreement (ijma1) became accepted as a valid source oflaw which in its turn might be extended by analogy. But in very many cases

no such agreementwas in fact reached; for differentschools of law, developing indifferent centres, under varied circumstances and influences, and accepting or

rejecting different Traditions, naturally reached conclusions which varied con-

siderably. This was inevitable because the systems thus built up were all

largely theoretical and divorced from ordinary life: hypothetical cases were as

seriously discussed as those which actually came before the Courts; and, while a

jurist's opinions might have great weight, there was no doctrine of binding pre-cedents, no appellate jurisdiction, and no body which could give authoritative

rulings. Serious diversitiesthus developed even among the Sunnis or "orthodox"

body of Muslims (to say nothing of the "heterodox" Khawarij and numerousShi'i sects), but a compromisewas found by which a number of schools mutuallyiecognised each other's orthodoxy: and of these schools four (the Hanafis,Malikis, Shafi'is and Hanbalis) survive to this day.

As these schools become crystallised, so the scope of independent deductionbecame more and more prescribed, and by the end of the third century of the

Hijra the door of ijtihad was regardedas closed. Henceforth every jurist (in theorthodox view) was a mere muqallid, one who must accept as authoritative the

opinions of his predecessors. And although a few authorities maintained that he

might still on each point choose which of several variant opinions to follow, thevast majority limited any such choice to variant opinions within his own particularschool. Almost from the first, moreover, the Shari'a found serious rivals in localcustom and the edicts of Caliphs and governors, rivals which impinged upon its

nominally universal domain to a greater or less extent according to the relativeorthodoxy of the ruler concerned, the influence of the Shari'a lawyers, and thecircumstances of the place and time.

This was the position until modern times. Muslimlaw was largely moribund,and Shari'a lawyers got no further than consulting or compiling commentarieson commentaries on commentaries. There was, moreover, virtually no

interchange (except by way of argument) between the different schools.True, their distribution was largely geographical, yet at many of the centresof Islam Qadis of the rival schools held their courts side by side, and thedecision of many a case would depend almost entirely on the school of the Qadito which it was referred.

Each, however,would enforce

as res judicataa

decision of his fellows, however different his own decision would have beenin the case concerned or would be in an exactly similar case referred to him infuture. The law suffered, therefore,from much uncertainty, and was complicatedby the mass of books of reference to which recoursemight be had.

It is against such a background that the political and cultural incursions ofthe West into the Muslimworld, and the subsequentTurkish and Arab awakening,must be viewed. In Turkey reform took the form of the Tanzimat legislation,which was designed both to re-establish confidence in the Empire and to impressEuropean Powers. Thus in 1858 a Penal Code, in 1861 a CommercialCode, andin 1863 a Code of Maritime Commercial Law were promulgated, all based on

European, and particularly French, models. In the main these may, however,be regarded as additional, rather than contrary, to the Shari'a, and the Turkishreformers at this time consistently refused to repeal even such controversial

provisions of the Shari'a as the death penalty for apostasy from Islam and theineligibility of non-Muslim witnesses in a Muslim law suit. At the same timesecular (Nizamiya) Courts were set up to apply this new legislation, togetherwith Mixed Courts to deal with cases between Ottoman subjects and foreigners--while the latter enjoyed among themselves, under the Capitulations, an extensionof that separate and community jurisdictionfor long conceded to the non-Muslimminorities.



20 THE SHARI'A TODAY

Between 1869 and 1876, moreover, the Hanafi law of obligations (mu'amalat)was codified in the "Majalla" as the Civil Law Code of the TurkishEmpire. Thiswas particularly designed for use by the newly-instituted Nizamiya tribunals,whose judges needed some more accessible, easily understandable, and decisive

book of reference than the voluminous compendiums and commentaries of thepast: its authors, moreover, attempted to choose those opinions of Hanafi juristswhich best accordedwith the requirementsof modem life. The Majalla, however,was not made obligatory, in that Shari'a judges and lawyers were always free torefer to the olderbooks of reference. It was not, moreover,until the introduction ofthe "Ottoman Family Law" in 1917 that the important step was taken of combin-

ing Hanafi rules with provisions borrowed from other schools (e.g. in the questionof the validity of marriages contracted under compulsion or of divorces utteredunder compulsion or intoxication, and in the question of the dissolution of

marriages for ill-treatment, etc.) But to this principle we shall return later.The Majalla was applied in most parts of the Ottoman Empire but not in

Egypt, which at this time was already started on the road to independence. Itis still in force today in Palestine, Trans-Jordan, Iraq and Syria, although in allthese countries it has been frequently amended or superseded in different pointsby statute law. In the Lebanon the Law of Ownership (1930) (which also appliesto Syria) and particularly the Law of Obligations and Contracts (1932) have

largely superseded the Majalla, which only survives today in a few particularssuch as the interdiction of minors, lunatics and others unfit to manage their

property; the law of muda-raba,muzara'a, musaqat and mugharasa (differentforms of agricultural contracts recognised by the Shari'a); the rules concerningthe validity of dispositions, and particularlywills, made during "Death Sickness";and certain provisions concerning land tenure and sport. Legislation based on

Western models covers all other branches of the law except for matters of personalstatus, and even here legislation was introduced in 1942 reorganisingthe Shari'aCourts and laying down that the Sunni Courts should apply the Ottoman FamilyLaw of 1917 and, in all else, the "best Hanafi opinion," while the Shi'i Courtswere to apply such of the OttomanFamily Law as was conformable to their own

legal system.But it is in Egypt that some of the most interesting developments have taken

place, and with these we shall deal in more detail. Some of the earlier Tanz;,matreforms were applied in Egypt as in other parts of the Ottoman Empire, and in

particular the establishment of Nizamiya Courts considerably restricted the juris-diction of the Shari'a Courts: but the Majalla, as we have seen, was never intro-

duced, for in 1874 Egypt attained juridical and administrative indeper-lenceunder Isma'il Pasha. But the reform movement continued strongly, and in1875 the Mixed Courts were set up to deal with cases between Egyptians and

foreigners, while in 1883 the Native Courts were instituted (in place of the

Nizamiya tribunals) and the Shari'a Courts were henceforth confined to mattersof marriage, divorce, parentage, guardianship, maintenance and succession,

together with gifts and "foundations" (waqfs), in so far as the Muslimpopulationwas concerned. At the same time both a penal and civil code was promulgatedforthese new Courts, derived almost entirely from the Napoleonic Codes. Certain

concessions, it is true, were made to Islamic sentiment, for the penal code was

representedas an extension of that ta'zir

(or punishmentat the discretion of the

ruler or judge for wrong-doing which did not come within the exact definition or

degree of legal proof laid down for certain specifiedoffences)for which the Shari'ahad always made provision, while clauses were inserted both forbidding the

imposition of the death penalty on a Muslimunless the Mufti1confirmedthat this

penalty could lawfully be imposed undeI the Shari'a in the circumstances, andalso laying down that the code did not destroy any personal rights (such as thatto blood money) which the Shari'a established.

It may well be asked why the Shari'a was thus progressively set aside in1 An Official whose duty it is to answer questions put to him concerning Muslim law.




favour of codes derived from Western sources. Initially this was far less theresult of any popular movement of reform than imposed on the people fromabove, in the interests on the one hand of administrativeefficiency and national

progress and on the other to satisfy foreign opinion. As time went on, however,

the more conservative opinion which lamented this progressive departure fromthe Shari'a has been challenged by a variety of arguments on the part of themore progressive elements which supported what had been done and sometimesadvocated further action. Some used political arguments, such as the need tofollow closely in the path of Western progress and to convince the West of

Egypt's emancipationfrom those elements in the Shari'a which cause particularlyadverse comment (e.g. mutilation for theft, retaliation in kind for assault orhomicide, or provisions for a maximum period of gestation fixed by the Hanafisat two and by the Shafi'is and Malikis at four years). Others used economic

arguments, such as dissatisfaction with the system of Waqfs or religious and

private foundations, under which a vast amount of the national wealth was held

in a dead hand, maladministered and unproductive; or such as the need for acommercial law free from the meticulous restrictionsof the law of usury which, if

str:ctly applied (and apart from those devices by which it was frequently evadedfrom the very first), would outlaw most modern commercial activities and leaveall economic development of Muslimlands to foreign capital. Othersagain usedmore strictly legal arguments, such as the inadequacy of archaic rules of pro-cedure and evidence which excluded inferential evidence even of the most con-clusive characterand gave disproportionateweight to oral testimony; or such as adesire for a code which gave definite rulings and could be consulted and under-stood with comparative ease (a need only partially met by Qadri Pasha'scodification of Hanafi personal law). Finally, there were social arguments, such

as a desire for reformswhich seemed to be blocked by a law which was regardedas divinely authoritativeand unchangeable.

Thus to set on one side the Shari'a as a whole in all but matters of personalstatus and a few others might seem at first sight the most drastic action thatcould be taken, and there can be little doubt that some of those who supportedthis procedurefelt that anything less would be inadequate. To others, however,this appeared far less drastic than any attempt to reform the Shari'a, for to

Muslim opinion it is always less serious to ignore than to deny. The attitude

largely adopted, therefore, was that, while it would have been unbelief to criticiseor in any way to alter the Shari'a which must always be regarded as an ideal

system for an ideal age, it must be recognised that modern life, with its com-

plexities, its deteriorationof moral standards, its progressin constitutionaltheory,scientific methods, and industrial development, and its greater emphasis onhumanitarian principles, made its application in all but personal statusimpracticable. Nor was Egypt, as we have seen, by any means alone in sucha restriction of the scope of the Shari'a, for it prevails today throughout thegreater part of the Muslim world. In modern Turkey, indeed, the sameprinciple has now been carried far further and the Shari'a abolished in toto infavour of the Swiss code on the grounds that the progress of the countrydemanded such action, sometimes supported by the argument, on the partof those who seek to combine piety with progress, that the Shari'a shouldregulate the private life of a Muslim before his God, not the behaviour of acitizen of a modern state before his fellow citizens and government.

Morelatterly, however, a new movement has developed in certain quarters-a movement for the reform of the Sha~ri'atself. In Egypt this started withinthe bounds of that personal law in which it was felt that the Shari'a could notbe put aside, but in which the more progressive elements saw considerable needfor reform. The first method adopted was tentative only, and consisted not inany change in the substantive law but in such decrees addressed to judicial andadministrative officials as were calculated to dissuade the public from exercisingcertain rights the essential legality of which was not called in question. Thus as




early as 1897 the Shari'a courts were forbidden to hear marriagepleas of variouskinds unless the marriages had been recorded in writing, and this law was pro-gressively amended in 1910, 1931 and 1933, so that the law now stands that theCourts may not hear any contested plea based on a marriagewhich has not been

officiallyregisteredby the competent official or where the husband has not reachedthe age of 18 and the wife of 16 at the time when the plea is raised: while the

competent officialsare also forbidden under penalty to register marriagesbetween

parties who have not reached these prescribed ages. Not, be it noted, that a

marriage of two infants concluded by their guardians under the Shari'a is not

perfectly legal in itself: for the explanatory memorandum attached to the new

legislation makes it clear that its authors aimed at limiting child marriage not byany direct amendment of the law but in an indirect and negative way (presumablybecause Prophetic precedent for child-marriage clearly exists). And the samecourse has been taken in a number of other matters, such as pleas of affiliation-where the Shari'a principle that a child born to a married woman can only be

repudiatedby her husband on proof of adultery or by the processof li'an has beenmodified in practice, though not touched in essence, by the rule that a contested

plea of affiliationis not to be heard where the alleged father can prove non-accessto the mother since the date of their marriage or where it can be shown that themother was widowed or divorced more than a year before the child was born.And many other examples could be quoted from the new law of Waqf (1946) of thesame procedure, which is commonly representedas an application of the Shari'a

principle that a ruler may always limit the competence of his judges with regardto the locality or durationof their jurisdictionor the type of cases they may hear.

But a far more drastic expedient has been adopted in recent legislation, where

parts of the substantive law to be applied bythe Shari'aCourtshave been amended

and authoritatively laid down. This legislation treats parts of the law of marriageand divorce, almost all the law of inheritanceand testamentary dispositions, and a

great deal of the law of Waqf. But the most interesting point to notice is the

principles on which these amendments have been introduced, and it is to these

that we must now turn.

The principle most extensively invoked hitherto has been what is termed

"talfiq", or an eclectic principle (which we have already noticed in passing in the

Ottoman Family Law of 1917), by which the Committees drafting the laws

concerned refused to hold themselves exclusively bound by the rules of the

Hanafi school but felt themselves free to choose one point from one school

and another from another. Thus in Law No. 25 of 1920 two Shafi'i principleswere preferredto those of the Hanafi school regardinga husband's liability to pay

past maintenance due to his wife or newly-divorced wife; while Maliki principleswere adopted concerningboth the maintenance or judicial divorce of a wife whose

husband cannot, will not, or does not support her and concerning the judicialdivorce of a wife who unwittingly marriesa man afflictedby some serious disease

or disability or of a wife whose husband subsequentlybecomes so afflicted. Again,in Law No. 25 of 1929 the Hanafi rules regarding divorce were abandoned in

favour of those of the three other schools as to the effect of a divorce uttered

under compulsion or intoxication (though on the latter point the jurists of these

schools are divided among themselves); in favour of those of Shafi'i and Malik as

to the effect ofambiguous expressions;

in favour of those of Shafi'i as to the

effect of divorce expressed in absolute terms but without using the triple formula;while as to the effect of a single utterance of divorce accompanied by the word

or sign of three or of a contingent divorce used as an oath or threat without any

real desire that it should take effect the views of the leading authoritiesof all four

schools have been abandoned for those of Ibn Taymiya (a somewhat eccentric

jurist of the Hanbali school who died early in the fourteenthcentury A.D.) and ofcertain others. In addition,the law of 1929 has adopted the Malikiprovision for the

judicial divorce of wives on the groundsof the cruelty, desertion,or long imprison-ment of their husbands, although the rule that the husband must have been absent




or imprisoned for at least a solar year before this plea can be entertained has adistinctly western flavour (since the Muslim year is always lunar). All theseamendments to the existing law have been introduced, of course, as being less

stringentor more equitable than the correspondingHanafi rules.

Where the views adopted have been those of some recognisedmujtahid2of oneof the four schools-or, still more, within the Hanafi school-it might, of course,be maintained that the framers of this new legislation have done no more thanexercise the right conceded by certain authorities to every muqallid,"namely the

right to choose which of the acknowledged mujtahids he will follow in any par-ticular point. In fact, however, they have gone a good deal furtherthan this in atleast three respects. In the first place they have on a number of occasionsabandoned the view of all the normally recognised mujtahids in favour of some

single jurist such as Ibn Taymiya-and that in some isolated point or points,without accepting any general application of those principles on which he basedhis conclusion; in the second place, they have frequently so combined the rules

of two or more schools on some one point as to make what is in effect a newrule; while, in the third place, they have occasionally rejected the opinions ofall the authorities of the past in favour of one suggestedby contemporaryopinion.An instance of this in the legislation so far examined is in Law No. 25 of 1929,where the maximum period during which a divorced wife can claim maintenanceon the ground of pregnancy is fixed at one solar year-instead of the two years(or in some circumstances even more) prescribed by the Hanafi jurists of the

past or the four years prescribed by Maliki and Shafi'i jurists. This is justifiedby the fact that there is no Qur'anic text on this subject and the only authorityis a saying attributed to 'A'isha which is regarded by some as of doubtful

authenticity and by others as based on women's gossip rather than any dictum

of the Prophet: in such circumstances the framers of the new law felt at libertyto consult modem medical opinion and to adopt one solar year as the maximumperiod of gestation for legislative purposes.

The significanceof this must not, of course, be exaggerated, but equally it mustnot be missed. It amounts in effect to a concession to what has been insistentlyclaimed by Muslimmodernists of recent years, namely the reopening of the doorof ijtihad. In this many modem Muslimssee the greatesthope for the future, forthereby they aim to sweep away the accumulated accretions of the middle agesand re-interpret primitive Islam in terms of modern life. In certain recentbooks a clear distinction has indeed been made between rules resting on Qur'anicor Traditional texts and those based in iftihad, and the suggestion has been

made that while the former are immutable (unless an unfortunate Tradition canbe disposed of in the same way as that of 'A'isha above, or a Qur-anic versesubjected to interpretativerestriction) he latter are capable of indefiniteadaptationand amendment. Such writers, it is true, sometimes fail to observe that eventhe opening of the door of ijtihad can only affect matters on which agreementhas not been reached in the past, unless indeed the doctrine of Ijma' is alsoto be attacked or extended. Others, however, make no bones about this, assertthat the Muslimcommunity has in fact often gone astray, and reject the Tradition"My Community will never agree upon an error" as emphatically as they rejectthe complementary Tradition "The disagreement of my Community is a mercyfrom God." Others, again, maintain that the agreement of the past can be

abrogatedby the agreement of the present and the future, and hope to use Ijma"as an instrument of reform.

It is when we turn to the recent Egyptian legislation regarding Inheritance,Waqfs and Wills, however, that we see the freedom with which the Drincipleoftalfiq at least has recently been applied in Egypt. Perhaps a summary analysis ofLaw No. 77 of 1943 regardingInheritance will sufficeby way of illustration. Thusin the vexed question as to whether a child born dead as a result of an assault on

2 One who has the right to exercise ijtihad, or independent deduction. See p. 18.3 One who must follow the rulings of others. See p. 19.




his mother should be regarded as able to inherit and pass inheritance (includingblood money) to his heirs, the law has forsaken the divergent views of both the

Hanafi and the other three schools in favour of that of early jurists such asRabi'a ibn Abu Abdu'l Rahman and al Layth ibn Sa'd. Similarly, while in

cases where there has been no assault on the mother the Hanafi rule that achild can inherit and pass inheritance if more than half born alive has been

rejected in favour of the insistence of the other three schools on its being whollyborn alive, the normal rule of all four schools that a child (other than an

alleged child of the deceased) will not be entitled to inherit if born more than6 months after his death has been abandoned in favour of a dictum of Ibn

Taymiya in favour of a nine months' limit in such cases. Again, in the matterof the priority of charges on a dead man's estate the new law has so combinedthe views of Ibn Hanbal, Abu Yusuf and Abu Hanifa as to lay down an orderof priority which is, in its complete form, wholly new; and the same remark

applies to the rules regarding the mutual rights of inheritance of non-Muslims

from different countries of domicile, where the views of Malik and Hanbal arein general adopted, but varied by one exception based on Abu Hanifa's opinion.

In regard to the sort of homicide which will exclude the slayer from rightsof inheritance to the slain the views of Malik have been adopted, and Malikiand Shafi'i views are again preferred in the problem known as the Himariyaor Mushtaraka (whereby brothers and sisters of the full blood are sometimesallowed to share with uterine brothers and sisters in the portion of inheritance

normally reserved for the latter). In the very vexed question as to the rightof inheritance of a grandfather in competition with brothers and sisters the

Hanafi and Hanbali rules are rejected in favour, in general, of Maliki and

Shafi'i principles,but in

particularthe view attributed to the

Caliph 'Aliibn

Abu Talib has been so combined with that of Zayd ibn Thabit as to producewhat is, in effect, a new rule-while in the doctrine of the "Return"4 the viewsof Abu Hanifa and Hanbal have been retained but combined with the opinionof 'Uthman ibn 'Affan regarding the position of the spouse relict In regardto the right of inheritance of cognates the view of Abu Yusuf (and, indeedcertain views attributed to him in preference to others also so attributed) havebeen preferred to those of Muhammad al Shaybani previously followed in

Egypt; while in the matter of the place of the patron in the list of heirs theviews of certain jurists such as 'Abdulla ibn Mas'ud have been preferred to

those of any of the four schools existant today. Finally, in the question of the

"acknowledged kinsman" the Hanafi principle of includinghim

amongthe

heirs is rejected; but he is given a right to the estate on other principles, butmuch the same conditions, if no heirs exist.

Space forbids any similar consideration of the other new Laws. Suffice itto say that the new law of Waqf (1946) is even more radical in its amendmentsto the existing law, and well deserves separate and detailed examination. It

may confidently be expected, moreover, that still more of those parts of the

Shari'a still applied in Egypt will be amended and codified.5 Some, however,have recently begun to demand something much more far-reaching, namelythe compilation of a complete legal system to cover every branch of the law

based fundamentally on the Shari'a but somehow adapted to modern needs.

It is argued that the political independence recently achieved should extend toculture and jurisprudence; that legal systems imported wholesale from the

West cannot suit the Middle East; and that the laws of the country should be

derived from the same Muslim heritage from which so much of the character

and customs of the people have always been drawn. A complete system of

' A doctrine under which those heirs who are accorded a specific share of the estate

before the residuary heirs take the remainder will themselves divide that remainder, in

proportion to their shares, in the absence of any residuary heirs.

5 A comprehensive draft has, in fact, already been proposed.



MARRIAGE IN ENGLAND, SINGAPORE AND CHINA 25

this sort, moreover, would obviate the need for different types of Courts oreven, perhaps, for a personal law peculiar to each religious group.

Yet the problems inherent in any such endeavour are formidable in theextreme, for in an undertaking of this scope and breadth the liberal principles

used in previous legislation would prove totally inadequate, however widelyand boldly they were applied. This is shown in the proposals of men likeSanhuri Pasha, who in 1942 completed a draft of a new Civil Code for Iraqbased on "Islamic legal texts, with such additions from contemporary legislationas circumstances require" and who recently presided over a Committee whichdrafted a similar (tentative) Civil Code for Egypt composed of 1591 Articlesdrawn from "comparativejurisprudence,the decisions of the Egyptian judicature,and the Shari'a" and providing that Judges should be bound by the Shari'ain any points not covered by the Code. These two drafts, neither of which has

yet advanced beyond the stage of official consideration,are thus based partially,though not exclusively, on the Shari'a, to which the additional material is

supposedto be supplementaryratherthancontradictory. In reality, of course, thereis a great deal which undeniably conflicts with the Shari'a as historically known:and while this is partially justified on those principles concerning ijtihad and

ijma which we have already discussed, the supporters of these new Codes havealso been forced to rely on a far more drastic and sweeping justification forinnovation. This they have found in the doctrine of Darura (necessity) orMaslaha (general welfare)-a doctrine which they have even applied to theotherwise immutable authority of Qur'anic texts and unimpeachable Prophetictraditions. By the strict Muslim of the liberal school this doctrine is interpretedas meaning that commands and prohibitions applicable to the Arabia of thefirst century if the Hijra need not always be regardedas literally binding today:it is the underlying principles which remain, while their application changeswith circumstances. To the middle party, on the other hand, the commandsand prohibitions stand unchanged, and the way of true reform would be theirliteral enforcement: but the conditionsof modern life, and the force of non-Muslimworld opinion, make it impracticableand inadvisable to make any such attempt,so consolation is found in the eschatological predictionsof early Islam that suchconditions would prevail at the end of the age. To the real conservative,however, the desire for such a code often seems wholly misplaced: for he arguesthat a system so amended can in no real sense remain the Shari'a at all. andthat the cause of Islamic piety would be better served by preserving the Shari'aintact as a theoretical system, however much its place may have to be taken

in practice by secular legislation. And in this, at least, he is supported by thethorough-going progressive, who considers that the price demanded by thepurists is altogethertoo hich, and that the l]eislation of a modern state should beunfettered by even the loosened shackles of the distant past.

Which party will win the day remains, at the present, a matter for speculation.

MARRIAGE AND KINDRED SUBJECTS IN ENGLAND, SINGAPOREAND CHINA

[Contributed by J. V. MILLS,ormerly of the Malayan Civil Service]

Introduction.(1) General. This paper deals with certain aspects of the law governing five

subjects, namely, marriage, the matrimonialproperty regime, matrimonialcauses,legitimacy (with legitimation and adoption), and succession. One postulates theexistence of a certain foreign element, namely, the fact that a party or othermaterialperson (e.g. the deceased husband of a party) is, or was, a Chinese.

One seeks to enquire under what circumstancesthe Court (a) in England (b)in Singapore takes the law of China into consideration, and what are the rules ofChinese law which the Court applies.

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