Introduction to Muslim Law

Monjur Shariya  Bhuiyan

Introduction to Muslim Law

Monjur Shariya Bhuiyan

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The text explores the relationship between pre-Islamic customs and Islamic law, primarily focusing on the influence of Arabian traditions on the development of legal practices in Islam. It argues that Islamic law did not entirely replace pre-Islamic customs but rather incorporated elements that aligned with its religious and ethical teachings, ultimately stating that the spirit of Islamic law draws from both the Quran and older practices.

Lecture 1 Introduction to Muslim Law Pre-Islamic Arabian Customs and their influence on Islamic Law The Arabian society when the Laws of Islam came into force was constituted of Nomadic people divided into tribes, sub-tribes and then into families. There were also town dwellers. But no settled form of Government or administration of law existed. The whole system of Arabian society was evolving around 3W, i.e. to say Wine Woman and War The term as we always use to describe that period is generally known as Aiyaame Jahiliyya i.e. ‘the period of ignorance/ Age of Darkness/ period of barbarism’. But there’s certain dissenting opinion in that regard. Goldziher and Sir Charles Lyall are of opinion that this picture, in certain, respect is overdrawn. They think that the word “Jahiliyya” doesn’t necessarily mean the period of ignorance, rather the age of ‘wildness’ or ‘intrepidity’ They distinctly signified the virtue of Manliness, bravery and hospitality into their general characteristics The Pre-Islamic Arabian customs as examined by Abdur Rahim in his Muhammedan Jurisprudence (p.6) ere interesting from the point of view of comparison whether Islamic Law is somehow influenced by the pre-Islamic customs. It is said that: “The spirit of Law in Islam is religious and ethical drawing its inspiration from the Quran and the Sunna teachings of the prophet but the context of the law is based upon the pre-Islamic customs and usages” It is also said that: “The prophet of Islam did not create new system of Law but based the law on pre Islamic customs. However, if the prophet overrides the prevalent usage of the community then that became ultimately the established doctrine of Islamic Law” Among the ancient Arabian customs the most interesting were those that regulated the relations between the sexes. Abdur Rahim has cited (p.7) four types of Arabian marriages: A man would ask another for the hand of his daughter and then marry her by giving the dower known as ‘Sadaqa’ usually to the guardian and sometimes to the bride herself. A man desiring a noble offspring would ask his wife to stay with a great chief and have intercourse with him. During this period the husband would stay away and come back after she is pregnant. A number of men less than ten would be invited by a woman to have intercourse with her. If she conceived and was delivered of a child she could summon all of them and say to one that it is your son Prostitution was legalized. The common prostitutes had a definite number of visitors and if she conceived she could call all the men who have- visited her and the physiognomic used lo decide to whom the child belonged. . In Islam, these marriages except the first form were illegal conjugal relations. Even in the first form it is not sale but Mahr (Dower) is given as a bridal gift. Temporary or Muta’ marriage was common practice. From a study of Hadith it would seem that Muta’ was a form of legalizes prostitution tolerated by the prophet in the earlier days of Islam but later on He prohibited it. But it is still practiced by Ithna Ashari (Shia schools- Ithna Ashari, Ismailys, Zaydis). No restrictions as to the number of wives - after Islam, no more than four. An Arab was absolutely free to release himself from the marital tie. He was not expected to assign any reason (same now) but he could divorce and take back his wife as many times he wanted, there Islam gave restriction. If divorce, she has to have an intervening marriage & than could remarry her ex-husband. After 1961 she does not have to have hilla marriage up to 2nd divorce. Then she must have intervening marriage. Woman was never a free agent in marriage. It was the father or other male guardian who gave her in marriage and her consent was of no value. Female infanticide was common. The property of an Arab only went to his male heirs (Agnates). All females were excluded. After Islam females were included although they got half the share of male. An Arab could make will out all his properly to anyone, but Islamic law gave limitations, one can't Will out more than one third and make his own blood & kin destitute. Thus, it would not be correct to suppose that Islam professed lo repeal the entire customary law of Arabia and to replace it with Code of altogether new laws. The Pre-Islamic customs and usages which happened to be in harmony with the religious and ethical criteria of Islam were allowed to continue: it can be shown how the Pre-Islamic usages made inroads or infiltrated into the Sharia: A number of texts particularly of traditions were based upon usages e.g. in Hedaya it is stated that partnership is lawful as prophet found people practicing it and confirmed it therein. Where the prophet gave tacit approval or was silent on number of issues. According to Imam Malik, the customary conduct of the citizens of Medina was reduced as a sufficient consensus of jurists (Ijma) and a source of law in the absence of explicit text. From this observation it can be concluded that the Pre-Islamic customary law have been embodied in the Muhammedan code by express or implied recognition ompiled By: Md. Saimum Reza Talukder Advocate, Judge Court, Dhaka; Lecturer, Department of Law, East West University LL.B. (Hon’s) and LL.M., University of Chittagong; PGD in “Social Innovation in a Digital Context”, Lund University, Sweden; Diploma in Economic, Social, Cultural and Development Rights, Kathmandu School of Law, Nepal

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