Mujallah And Its Fore Runners

MUJALLAH AND ITS FORE﷓RUNNERS MUJALLAH AND ITS FORE‑RUNNERS BY DR. NASIM HASAN SHAH, M.A.LL.B., DOCTEUR EN DROIT (PARIS) Senior Advocate Supreme Court of Pakistan The study of Hundred Maxims taken from the Mujallah and so felici tously translated into English by Mr. Justice A. R. Cornelius, Chief Justice, Supreme Court P L D 1966 Jour. 49 (104) has vividly spot‑lighted the existence of a highly developed legal system. Throughout the country there is a persistent demand that the laws in force in Pakistan should be Islamic laws otherwise the struggle for carving out Pakistan from the sub‑continent of India will have been in vain and practically of no meaning. The amendment made in the Article 1 of our new Constitution (by the first Constitutional Amendment) whereby the word "Islamic" has been ‑re‑introduced in the name of the Republic of Pakistan is merely the Legislative recognition of the deep desire of the people in the country to establish an Islamic Polity wherein rule is in accordance with the laws of Shariat. It cannot be denied that a considerable number of highly educated and well meaning people are genuinely convinced that in the modern age on account of the tremendous evolution in human relationships and the advances in science, technology' and .the increasing complexity of transactions any attempt to "revert" to Shariat laws is neither desirable nor practicable. . I believe that this belief is engendered due to lack of full knowledge of the great work done by Muslim jurists on every branch of law. A slight acquain tance with these works can satisfy the sceptics that with serious effort the task is well within reach. In this connection I wish to refer to one such work, namely, "Falsafat AI‑Tashri Fi Al‑Islam." (The Philosophy of Jurisprudence in Islam) by S. Mahmassani which has recently been translated into English. This book is avowedly a "brief introduction to the study of Islamic Jurisprudence in the light of its various schools and of modern laws and brings to light some of the buried treasures of Muslim thought and one of the treasures revealed in this remarkable book is the "Mujallah". Mahmassani, in his admirable work, after noticing the system of law prevalent in the pre‑Islamic era (Jehilia) the general principles introduced into the ancient Arab practice during the age of the Prophet and after describing the period of the Orthodox and Ummayyad Caliphs and "the golden period of the Abbasids" speaks of the great Muslim schools of law, the Hanafi School, the Maliki School, the Shafii School, the Hambli School, the extinct Sunni Schools (the Al‑Awzo'i School, the Zahiri School, the Tabari School); the Shi'ah Schools (the Imamiyah Shiah, the Zadiyah Shiah, the Ismailiyah Shiah) and then goes on to discuss the Ottoman Laws and the Mujallah. In Chapter VIII the position with regard to Shariat laws down to the time of the establishment of the Ottoman Empire is mentioned in the following words "We discussed in the previous chapter the emergance of the Islamic Schools and their differences regarding the sources and body of jurisprudence. We have seen the dismal situation into which legal activity had lapsed in the era of sterility which followed the golden age. We pointed out how creative work had ceased and how imitation had become prevalent. Abridged texts, annotations, commentaries, codes of Fatwas etc. had increased to such an extent that the study of jurisprudence became a formidable task indeed. The difficulties were further intensified by the fact that the Shariah rules governing transactions had not been officially codified. It is true that the Koran was collected in the recognized version during the caliphate of "Usman ibn Affan' in the year 30 A. H. (650 A. D.). The traditions, however, were never compiled in this manner; the Caliph `Umar had refused the compilation of the traditions for fear that they would find favour in the eyes of the people, in preference to the Koran. The Umayyad Caliph `Umar ibn Abd‑al‑Aziz, attempted a compilation of the traditions in the early part of the second century A. H. (eighth century A. D.). He wrote to Abu Bakr‑ibn‑Hazm asking him to study and write down the traditions that were available. He was fearful that learning might suffer extinction and that men of learning might pass away. But he was not successful in his plan because he died before the compilation was completed. Similarly the laws governing transactions were not written down in a general code; this led to difference in judicial decisions, interpretations and opinions." After referring to the further efforts made in this connection the conclu sion is thus expressed: "The Shari‑ah laws remained officially uncodified until the days of the Ottoman state. Those seeking judicial rules and precedents had to go back to the various books on jurisprudence and to their annota tions and the many books on Fatwas." THE INDIAN FATWAS: Referring to the Fatwas, under the heading `Indian Fatwas', the learned author observes: "Aurangzeb, one of India's Sultans in the 11th century A. H. (17th A. D.) interested himself in the collection of Fatwas. He formed a com mittee of India's leading jurists with Sheikh Nizam as president to "prepare a comprehensive work containing the books of Zahir‑al Riwayah (al‑Mabsut, al‑Jami, al‑Kabir, al‑Jami‑al‑Saghir etc.) which had been approved by the most distinguished jurists, and the rare problems accepted by the men of learning". This they did in a book known as al‑Fatawa al‑Hindiyah or al‑Fatawa al‑Alamgiriyah after the title of the Sultan (Alamgir)." It is a comprehensive work in six large volumes arranged on the model of al‑Hiddayah by al‑Marghinani which discusses religious observances as well as transactions like the rest of the Islamic juridical books. It was and still is one of the major references in Hanafi jurisprudence. This semi‑official compilation was not intended to be binding and not generally applicable like modern legal codes; it was not even similar to modern codes in style and arrangement. What it did comprise were many juridical questions, some real, others hypothetical, with a statement of the prevalent view on each question. THE OTTOMAN LAWS In the 19th century a number of European codes were elaborated and the ottoman Empire felt that the needs of the age necessitated the issuing of appropriate laws. Ottoman codification was influenced by foreign laws and most of it was derived from foreign codes in text, in spirit, and in arrangement. The Ottoman State was motivated in this endeavour by the current needs of commerce and social evolution. Some of these codes were in conformity with the Islamic Shariah while others were not. The Ottoman Criminal Code, for instance, did not approve the Sharii penalty, of cutting off the hand of the thief nor the penalty of whipping and the like. Also contrary to the prohibition of usury by the Shariah, the Ottoman Civil Procedure Code permitted a legal rate of interest (Article 112), and contractual interest payments were allowed in ordinary and commercial loans in accordance with the new Profits Law (Murabahah) enacted in 1887. THE MUJALLAH The Ottoman State also decided to prepare a civil code. A seven man committee of jurists called the Committee of the Mujallah was appointed under the Chairmanship of Ahmad Jawdat Pasha, Director of the Bureau of Legislation. The aim of the Committee was "to prepare a book on juridical transactions which would be correct, easy to understand, free from contradictions, embodying the selected opinions of the jurists and easily readable by everyone". The reason for this codifying, as the Committee explained in its report submitted to the Prime Minister, Ali Pasha, in Muharram 1286 A. H. (1869 A. D.) was that "the science of jurisprudence is an infinite sea with no shore to it. The deduction of the most worthy opinions for the solution of judicial problems requires considerable intellectual skill and thorough; grasp (of the subject), particularly so in the Hanafi school where many interpreters of varying calibre have given conflicting opinions. Despite this fact no attempt has been made, as in the Shafii school, to sift and crystalize the subject matter. It is very difficult to discover the correct rules and to apply them to specific cases. Moreover, the changing times give rise to problems that must be built upon custom or usage." The Committee began its work in 1285 A. H. (1869 A. D.). It submitted the introduction and the first book of the Mujallah to Shaikh‑al Islam and other dignitaries who incorporated certain modifications and refinements. The members of the Committee then divided the work amongst themselves, so that each member participated in writing some sections. The Chairman alone participated in all its sections. The compilation was completed in 1293 A. H. (1876 A. D.), Thus the Ottoman Civil Code came into existence. It was enacted by an iradah, a royal decree, by the Sultan under the title: Mujallat‑al‑Ahkam al Adliyah (The Corpus of Juridical Rules). THE CONTENTS OF THE MAJALLAH The Mujallah comprises 1851 articles arranged in an introduction and sixteen books. The introduction consists of 160 articles. The first defines the science of jurisprudence and its divisions and the remaining articles deal with maxims of generally applicable rules. These as already observed, have been lucidly translated into English by the learned Chief Justice of Pakistan. The books of the Mujallah are as follows (i) the book of sale; (ii) the book of hire; (iii) the book of guarantee or suretyship; (iv) the book on transfer of debt; (v) the book on pledges and mortgages; (vi) the book on deposit and trusts; (vii) the book of gift; (viii) the book of .wrongful appropriation and destruction; (ix) the book of interdiction,, constraint and pre‑emption; (x) the book on joint ownership or partnership; (xi) the book of agency; (xii) the book on settlement and release; (xiii) the book on admissions; (xiv) the book on actions; (xv) the book on evidence and administration of oath, and finally; (xvi) the book on the administration of justice by the Courts. The Mujallah was mainly derived from the books of Zahir al‑Riwayah in the Hanafi school. In case of conflict between the view of the Great Imam (Abu Hanifah) and his companions, the Mujallah adopted those opinions which conform to the needs of the age and public interest. For example in the interdiction of prodigal the Mujallah adopted the views of the two Imams, Abu Yusuf and Muhammad ibn al‑Hasan al‑Shaybani, discarding the opinion of the Great Imam Abu Hanifah. Also in contracts of istisna (manufacturing a thing for future delivery) the Mujallah adopted the view of Abu Yusuf. In a few other cases the Mujallah abandoned the views of Zahir al‑Riwayah and had recourse to other works. For example, the Mujallah agreed with the views of the later jurists in the Hanafi school concerning the liability for benefits accruing from property wrongfully appropriated. This view is similar to that of the Shafii school. Contrary to al‑Fatawa al‑Alamgiryah and other compilations of Islamic jurisprudence, the Mujallah did not go into questions of religious observances or penal matters; its scope was restricted to the rules of law in civil transactions. COMMENTARIES ON THE MUJALLAH The Mujallah at the time of its publication filled a considerable gap in the field of the judiciary and of legal transactions. In place of the multifarious and widely dispersed opinions on jurisprudence and fatwas the Mujallah presented a firm and clear exposition of Shariah laws hich jurists could without great exertion, comprehend and apply. Annotations formerly based on the many books on jurisprudence became restricted to the articles of the Mujallah, expounding their meaning and indicating their sources. It is extremely interesting to find that the principal matters on which rules of Muslim Law rather Anglo Mohammadan Law enforced through Courts in our country viz., matters relating to succession and inheritance, marriage, dower and divorce, are not dealt with in the 'Mujallah" and one is pleasantly surprised to notice that matters like administration of justice, ownership and sale etc., with regard to which most people in Pakistan consider that there is no alternative but to fall lack upon the principles laid down in the Western system of law have in the `Mujallah" been provided for with precision and full detail. Under the heading "The Mujallah in the Modern era" we find interesting details as to the extent of its influence in Moslem World. We learn, for example, that the Mujallah was in force in Turkey and n most territories formally under the Ottoman regime until the World War C; in the `aftermath of World War I, Turkey abrogated it, while in the Lebanon and Syria, except for a few of its provisions, it was repealed n stages, and that at the present time it is in force only in the Hashemite Kingdom of Jordan, though with many modifications. An Iraqi Civil Code, we further learn, has been elaborated by a Committee in Baghdad on the basis of Islamic jurisprudence but with the incorporation, from modern codes, of such provisions deemed to be necessary for the exigencies of modern times. EGYPTIAN CODE In Egypt after following several westernised codes the Egyptian Civil Code which consists of 1149 articles has been drawn up which has three sources for its basis: comparative law, Egyptian case‑law, and the Islamic Shariah. From this last source the code derived the theory of the misuse of rights, capacity, the transfer of debt, acts of God, death sickness (rules governing a person's right to dispose of property on his death‑bed), deceit, limitation by time, pre‑emption, gift and other detailed rules. The first article in the code provides that a Judge should have recourse to the principles of the Islamic Shariah in the absence of a legislative provision in any particular case. This code was published on July 16, 1948, and was put m force on October 15, 1949. The foregoing survey shows that the Shariah is so rich in legal treasures as to be wholly sufficient to cope with all aspects of modern civilization and national awakening. Besides the Shariah would preserve national pride, religion and traditions. A legal system based on the Shariah will result not only in obviating all dependence on alien legal system but would also insure harmony between the machinery of govern ment and the governed, the existence of which is a pre‑requisite for the success of all legislation.