Star Law Analysis
The spirit of Islamic law
Justice Mohammad Gholam Rabbani
In an article published in The Daily Star on 3 September KM Rasheduzzaman Raja, Joint District Judge, Sirajganj, proposed that Islamic Law of Adoption is the need of the hour while Mohammad Zahidul Islam, a legal researcher working for BLAST, in an article published in the same newspaper on 10 September opposed that proposal. If we stand them up face to face, the moot question which we will find is this: Is the Law of Islam stationary and incapable of development? I venture to give the answer from the pages of history.
This is called the pulpit case. While delivery a sermon standing on the pulpit in a mosque, Hazrat Ali was interrupted by a person from the congregation who asked what would happen to the wife (normal share 1/8 in the Quran) when her deceased husband had also left two daughters (normal share 2/3), mother and father (normal share 1/6 each). Ali replied that their shares would abate in proportion.
This is called the Donkey case. A deceased woman left a husband, mother, two full brothers and two uterine brothers. Now according to the Quranic shares, husband would get ½, the mother 1/6 and two uterine brothers 1/3, thus exhausting the estate and leaving nothing to the full brothers. Full brothers appealed to Caliph Umar and said, "Assume that our father does not count. Consider him a donkey. Then we will be four sons of our same mother." Accepting the logic Umar allowed equal share to each of the four brothers.
In time two schools of law developed, one in Medina and the other in Kufa and if we compare the laws the two schools created we will find that the laws in the Quran were interpreted by each of them in the light of their respective existing social circumstances. Certain variations in the legal systems of the two schools show because the bond of traditional Arabian society -- that of blood relationship -- no longer had the same importance to the jurists of Kufa as it had been to the jurists of Medina. For one of the basic trends of the reforms introduced by the Prophet (SM) was the replacement of the wider social unit of the tribes by the unit of the individual family. This purpose could not be understood or accepted by the school at Medina as at that time the tribal bond was regarded as one of kinship. Tribesmen regarded themselves as one of blood. But tribal distinctions were not so keenly felt in Kufa where Arab and non-Arab Muslims were in intimate contact.
Says Iqbal in his essay titled "the Principle of Movement in the Structure of Islam," "The assimilative spirit of Islam is even more manifest in the sphere of law. .... with the return of new life, the inner catholicity of the spirit of Islam is bound to work itself out inspite of the rigorous conservatism of our doctors. And I have no doubt that a deeper study of the enormous legal literature of Islam is sure to rid the modern critic of the superficial opinion that the Law of Islam is stationery and incapable of development."
I now quote an observation from a decision of the Lahore High Court: "If the interpretation of the Holy Quran by the commentators who lived thirteen or twelve hundred years ago is considered as the last word on the subject, then the whole Islamic society will be shut up in an iron cage and not allowed to develop along with the time. It will then cease to be a universal religion and will remain a religion confined to the time and place when and where it was revealed." (PLD 1960 Lah 1142)
The author is retired judge, Appellate Division, Supreme Court.
