LAW, The The words used by Muslims to express “the law,” are ash-Shari’ah الشريعةand ash-Shar’ الشرع, the meaning of which is “the way.” The compiler of the Ghiyazu ‘l-Lughah defines it as…
The words used by Muslims to express “the law,” are ash-Shari’ah الشريعةand ash-Shar’ الشرع, the meaning of which is “the way.” The compiler of the Ghiyazu ‘l-Lughah defines it as “the way or road in the religion of Muhammad, which God has established for the guidance of His people, both for the worship of God and for the duties of life.” The term ash-Shari’ah occurs once in the Qur’an, Surah xlv. 17: “We (God) put thee (Muhammad) in the right way concerning the affair?” The term ash-Shir’ah is almost obsolete in books on Muslim theology, but it occurs once in the Qur’an, Surah v. 52: “To every one have we given a right way.”
In the Traditions and theological works, the word ash-Shar’ is generally used to express the law of Muhammad. The Hebrew occurs in the Qur’an as Taurit, and is always used for the law of Moses. [TAURET.]
According to Muslim doctors, ash-Shar’, or “the Law,” may be divided into five sections: I’tiqadat, “belief”; Adab, “moralities”; ‘Iladat, “devotions”; Mu’amalat, “transactions”; and ‘Uqabat, “punishments.”
(1) I’tiqadat, embraces all that is contained in the all articles of the Muslim faith, namely, Belief in (a) God; (b) His angels; (c) His Books; (d) His Prophets; (e) The Day of Judgment; (f) The Decrees of God. This section of Muslim law is termed ‘Ilmu ‘l-’Aqa’id or, “The Science of the Articles of Belief,” and includes all branches of scholastic theology. The books chiefly consulted on this subject in the present work- are the Sharhu ‘l-Muwaqif, by Saiyid Sharif-al-Jurjani, and the Sharhu ‘l-’Aqa’id, by Mas’ud Sa’du ‘d-din at.Tafazani.
(2) Adab embraces the consideration of all those moral excellences which are enjoined in the Qur’an and Traditions, as Ikhlas, “sincerity” Tawwukul, “confidence in God”; Tawazu, “humility”; Tafwiz, “resignation”; Qasru ‘l-Amal, “keeping down one’s expectation”; Zuhd f’i dunya, “renunciation of the world”; Nasihah, “giving good counsel and advice”; Qana’ah, “contentment;” Sakhawah, “liberality;” Hubb, “love to God and man”; Sabr, “patience”; &c. (See Majma’u ‘l-Bihar, vol. ii. p. 422.)
(3) ‘Ibadat, includes all acts of devotion to God, such as are included in the five pillars of practice: (a) Recital of the Creed; (b) Prayer; (c) Zakat, or “legal alms”; (d) Saum, or “fasting”; (e) The pilgrimage to Makkah. It will also embrace such religious acts as Jihad, or warfare for the propagation of the religion of Islam.
(4) Mu’amalat. includes such duties as are required between man and man, and is divided into Mukhasamat, “altercations”; Munakahat “nuptials”; Amanat, “securities.” Under these three heads are embraced all the ‘various sections of civil jurisprudence such as barter, sale, agency, larceny, marriage, divorce, dower, partnership, claims, etc.
(5) ‘Uqubat, denotes the punishments instituted in the Qur’an and Traditions, namely, (a) Qisas, “retaliation”; (b) Haddu ‘s-sariqa, punishment for theft by the loss of a hand; (c) Haddu ‘z-zina, punishment for fornication and adultery, stoning for a married person and one hundred lashes for an unmarried person; (e) Haddu ‘l-qazf, or punishment of eighty lashes for slander; Hadda ‘r-riddah, or punishment by death for apostasy; Haddu ‘sh-shurb, or punishment with eighty lashes for wine-drinking.
The two common divisions of Muslim law are Ilmu ‘l-Kalam, or ‘Aqai’id, embracing all matters of faith; and ‘Ilmu ‘l-Fiqh, which includes all matters of practice as distinguished from articles of faith.
Muslim law is also divided into two great distinct ions of Masr’ü’, “lawful.” and Ghairu ‘l-mashr’, unlawful,” or, as it is expressed in Persian, Rawa and Narawa.
That which is lawful iv graded into five classes. (1) Farz, that which is proved beyond all doubt to have been enjoined either in the Qur’an or in a tradition of undoubted authority, and the denial or disobedience of which is positive infidelity. (2) Wajib, that which is obligatory, but of which there is some doubt whether or not it was enjoined in the Qur’an or in a tradition of undoubted authority. (3) Sunnah, that which was practised by Muhammad; (4) Mustahabb, that which Muhammad and his Companions sometimes did and sometimes omitted; (5) Mubah, that which is desirable, but which may be omitted without fear of sin.
Things which are unlawful are graded into three classes: (1) Mufsid, that which is most vicious and corrupting, a mortal sin; (2) Haram, that which is distinctly forbidden; (3) Makruh, that which is generally held to be unclean.
These distinctions of lawful and unlawful, with their various subdivisions, apply to all branches of Muslim law, whether it relate to ordinary duties of life, or of devotion to God. It will be seen how important a place the example, practices, and sayings of Muhammad occupy in the moral law of Islam.
This branch of Muslim law is called as-Sunnaah, or the custom of Muhammad, and is distinguished as—
(1) Sunnatu ‘l-’fili, that which Muhammad himself did.
(2) Sunnatu ‘l-qauli, that which Muhammad said should be practised.
(3) Sunnatu ‘l-taqriri, that which was done in the presence of Muhammad, and which he appears to have sanctioned.
It is therefore a serious mistake to suppose that the Qur’an contains all that is esteemed necessary for faith and practice in Islam; the example of Muhammad is as binding upon the Muslim as any injunction contained in the Qur’an itself, for neither that which is, Far; nor that which is Ss,sna/s can be omitted without sin.
The true origin and fountain of all law is the Qur’an and the Traditions, and no Muslim school of theology has ever rejected the Traditions. They are binding upon Sunni, and Shi’ah, and Wahhabi; the only difference between the Sunni and Shi’ah being that they receive different collections of Traditions. The Wahhabis receive those of the Sunnis, and call themselves Muhaddisin, or traditionists.
In addition to the Qur’an and Hadis (or Traditions), both Sunni and Shi’ah Muslims acknowledge the concurrence of the learned, called Ijma”, the Shi’ahs believing that they still possess Mujtahids capable of giving an infallible interpretation of the law; the Sunni,, on the other hand, confessing that, since the days of the four great doctors (Abu Hanifa, Malik, ash-Shafi’i, and Ibn Hanbal), Ijma’ has not been possible; whilst the Wahhabis accept only the Ijma’ of those who conversed with the Prophet himself. The fourth foundation of orthodoxy in both Sunni and Shi’ah schools is the system of interpretation called Qiyas, or ratiocination.
I. The Sunnis all receive the same collections of traditions, especially those which are known as the “six correct books,” the Sahihu ‘l-Bukhari, the Sahihu Muslim, the Sahihu ‘T-Tirmizi, Sunanu Abi Da’ud, Sunanu an-Nasaf’i, and Sunanu Ibn Majah. The compilation by the Imam Malik, which is first in order of date, is also a collection of traditions of very great authority. (TRADITIONS.)
These different sects of Sunnis do not differ in usul, or fundamentals of religions belief, but in minor rules of practice, and in certain legal interpretations; but being of different opinions and broaching in some respects separate doctrines, four schools of jurisprudence have been established, known as Hanafi, Shafi’i, Hanbali, and Maliki.
The differences amongst these four Sunni schools are based either upon different traditions or upon different interpretations of the same traditions, also upon the various ways In which the liberty of qiysis, or ratiocination, s has been exercised. Consequently the number of works which have appeared on the subjects of scholastic science said jurisprudence, has been very great indeed.
We are indebted to Mr. Shams Charun Sircar, the learned and able Tagore Professor of Law in Calcutta, for the following resume of the principal Sunni writings on ash-Shar’.
“The chief works that treat generally of the doctrines of the four principal sects of the Sunnis, are mentioned by Haji Khalifah to be the Jami-el-Mazahib (Jami’u ‘I-Mazahib), the Majmaa-ul-Khilafiyat, the Yanabiya-ul-Ahkam (Yanabi’u ‘l-Ahkam), the Uyum, and the Zubdat-ul-Ahkam. The Kanz-ud-Dakaik (Kanzu ‘d-Daqa’iq), by An Nasafi, is a book of great reputation, principally derived from the Wafi; and containing questions and decisions according to the doctrines of Abu Hanifah, Abd-Yusuf, Imam Muhammad, Zufar, Shafi’i, Malik, and others. Many commentaries have been written on the last mentioned work; the most famous of them is the Bahr-ur-Raik (al-Bahru ‘r-Ra’iq), which may, indeed, almost be said to have superseded its original, at least in India. The Bahr-ur-Ra’ik is by Zainu-ul-Aabidin Bin Nujaim-ul Misri (Ibn Najim), A.H. 970. The Multaka-al-Abhar (Multaqa ‘l-Abhar), by Shaikh Ibrahim Bin Muhammad al-Halabi, who died A.H. 956, is a universal cede of Muslim law. It gives the different opinions or doctrines of Abu Hanifah, Malik, Shafi’i, and Hanbal, the chief Mujtahid Imams and the founders of the four great sects of Sunnis, and illustrates them by those of the principal jurisconsults of the school of Abel Hanifah. it is more frequently referred to as an authority throughout Turkey, than any other treatise on jurisprudence.
“The digests inculcating exclusively the doctrines of each of the said four great sects are, indeed, numerous, though a very few of them which maintain the doctrines of the Maliki, or Sháfi’i, or Hanbali sects are used in India. Digests written by Malik or any of his followers are scarcely found in India “Of the digests maintaining the Maliki doctrines, two have lately appeared in France (by M. Vincent, 1842; M. Perron, 1843). The first work of Shafi’i, entitled the Usul or fundamentals, which contains the principles of the Muslim civil and canon law, may be classed as a digest. The Mukhtasar, the Mansur, the Rasa’il-ul-Mutabirah (ar-Rasa’ilu ‘l-Mu’tabarah), and the Kitab-ul-Wasaik, are amongst the other works written by Abu Ibrahim Bin Yahiyi-al-Muzani, a distinguished disciple of Shafi’i, and a native of Egypt (Au. 264), and are according to the doctrines of Shafi’i. The works by Ibnu Hambal and his followers are few in number, and rare.
“The followers of the Hanifi sect, which obtains most commonly amongst the Muslims of India, have, like others, divided their law into two general branches or parts, respectively called the Fikah (law, religious ad secular), and Faraiz (the succession to, and division of, inheritance).
“The works which are on Fikah (Fiqh), and which are considered as the chief authorities if the Hanifi sect, are the following :—Abd Hanifah’s own digest of law, entitled the Fikah-ul-Akbar(al-Fiqhu’l-Akbar). This is the first in rank, and has been commented upon by various writers, many of whom are mentioned by Haji Khalifah. The doctrines of that great lawyer, however, are sometimes qualified or dissented from by his two famous pupils, Abu Yusuf and Imam Muhammad. The work entitled Adab-ul-Kazi, which treats of the duties of a magistrate, is known to have been written by Abu Yusuf. Save and except this, no other work appears to have been composed by him. He, however, is said to have supplied his notes to his pupil Imam Muhammad, who made use of them in the composition of his own works. The works of Imam Muhammad are six in number, five of which are, in common, entitled the Zahir-ur-Rawayat (Zahiru ‘r-Rawayat, conspicuous traditions or reports). They are: 1. The Jami-ul-Kabir (al-Jámi’u ‘-Kabir); 2. Jarni-us-Saghir (al-Jami’u ‘s-Saghir); 3. Mabsut fi Faru-ul-Hanifiyat; 4. Ziyadat fi Farnu-ul-Hamifiyat; and 5. Siyar al-Kabir wa Saghir. The Nawadir, the sixth and last of the known compositions of Imam Muhammad, though not so highly esteemed as the others, is still greatly respected as an authority.
“The next authorities among the Hanafis, after the founder of their sect and his two disciples, are the Imam Zufar Bin al-Hazi’l who was chief judge at Basrah, where he died (A.H. 158), and Hasan Bin Ziyad. These lawyers are said to have been contemporaries, friends, and scholars of Abu-Hanifah, and their works are quoted here as authorities for Abu Hanifah’s doctrines, more especially when the two disciples are silent. The most celebrated of the several treatises known by the name of Adab-ul Kazi was written by Abu Bakr Ahmad Bin ‘Umar ul-Khassaf (A.H. 261). An abridgement of the Hanafi doctrines, called the Mukhtasur ut-Tahavi, was written by Abu Jaafar Ahmad Bin Muhammad at-Tahavi (A.H. 331), who wrote also a commentary on the Jami us-Saghir of Imam Muhammad.
“The Mukhtasar lil-Kuduri, by Abu ul-Husain Ahmad Bin Muhammad al-Kuduri (A.H. 228) is among the most esteemed of the works which follow the doctrines of Abu Hanifah. There is a well-known commentary on the Mukhtasar lil-Kuduri, entitled Al-Jauharat un-Nayyirah, which is sometimes called Al-Jauharat ul-Munirah. The digest, entitled the Mabsut (al-Mabsut), was composed by Shams-ul-Aimmah Abu Bakr Muhammad as-Sarakhsi whilst in prison at U’zjand. This is a work of great extent and authority. He was also the author of the most celebrated work entitled Al-Muhit (al-Muhit), which is derived in a great measure from the Mabsut, the Ziyadat, and the Nawadir of Imam Muhammad. The work entitled the Muhit by Burhan-ud-din Mahmud Bin Ahmad, already spoken of. is not so greatly esteemed as the Muhit as-Sarakhsi (Muhtu ‘s-Sarokhsi). A compendium of Al-Kuduri’s Mukhtasar, which he entitled the Tuhfat-ul-Fukaha (Tuhfatu ‘l-Fuqaha), was composed by Shaikh Ala-ud-din Muhammad as-Samarkandi. The work of Alaud-dinl was commented upon by his pupil Abu Bakr Bin Masuud.
“There ace several Arabic works on philosophical and theological subjects whitch bear the name of Al-Hiddayah (the guide). The work. entitled Al-Hidayah f’i-al-Faru, or the guide in particular points, is a digest of law according to the doctrines of Abi Hanifah and his disciples Abu Yusuf and Imam Muhammad. The author of this work is Shaikh Burhan-ud-din Ali (A.H. 593), whose reputation as a 1awyer was beyond that of all his contemporaries. This Hidayah is a commentary on the Badaya-ul-Mubtada, an introduction to the study of law, written by the same author in a style exceedingly concise and close. In praise of the Hidayah, Haji Khalifah says, ‘It has been declared, like the Kuran to have superseded all previous books on the law; that all persons should remember the rules prescribed in it, and that it should be followed as a guide through life.’ The Hidayah has, besides the Kifayah, many other commentaries, as a work of so great celebrity and authority is expected to have. The principal ones are the Inayah (‘Inayah), the Nihayah, and the Fath-ul-Kabir.
“The name Inayah, however, is given to two commentaries on the Hidayah. Of these, the one composed by Shaikh Kamal-ud-din Muhammad Bin Mahmud, who died A.H. 786, is highly esteemed and useful. Supplying by way of innuendoes what was omitted or left to implication, also expressing what was understood in the Hidayah and explaining the words and expounding the passages of the original by the insertion of explanatory phrases the author of the Inanyah has rendered the work such as to be considered of itself one if his own principal works, with citations of passages from the Hidayah.”
“The Nihayah is composed by Husam-ud-din Husain Bin Ali, who is said to have been. a pupil of Burhan-ud-din Ali. This is said to he the first commentary composed on the Hidayah: and it is important for having added the law of inheritance to the Hidayah which reals only of the Fikah. The commentary, entitled the Kifayah is by Imam-ud-din Amir Katib Bin Amir Umar, who had previously written another explanatory gloss of the same work, and entitled it the Ghayat-ul-Bayan. The Kifayah was finished A.H. 747, and, besides the author’s own observations, it gives concisely the substance of other commentaries.”
“The Fath-ul-Kubir lil-Aajiz ul-Fakir, by Kamal-ud-din Muhammad as-Siwasi, commonly called Ibnu Hammam, who died A.H 861. is the most comprehensive of all the comments on the Hiddyah. and includes a collection of decisions which render it extremely useful. The short commentary entitled the Fawdid, written by Hamld-ud-din Ali, Al-Bukhari, who died A.H. 667, is said to be the first of all the commentaries on the Hiddyah. The Wafi, by Abu-ul-Barakát Abd ullah Bin Ahmad, commonly called Hafiz-ud-din an Nasafi, and its commentary the Kafi, by the same author, are works of authority. An-Nasafi died A.H. 710.”
“The Vikayah (al-Wiqayah), which was written in the seventh century of the Hijrah by Burhan ash-Shariyat Mahmud, is an elementary work to enable the student to study and understand the Hidayah. The Vikayah is printed, and invariably studied, with its celebrated commentary, the Sharh ul-Vikayah, written by Ubaidullah Bin Masuud. who died A.H. 745. The Sharh-ul-Vikayah contains the text of the Vikayah with a gloss most perspicuously explanatory and illustrative; so much so, that those chapters of it which treat of marriage, dower, and divorce, are studied in the Madrassahs of India in preference to the Hidayah itself. There are also other commentaries on the Vidayah, but not so useful as the above. On the Sharh-ul-Vikayah , again, there is an excellent commentary, entitled the Chalpi, written by Akhi Yusuf Bin Junid who was one of the then eight professors at Constantinople. This work was commenced to be written about AH. 891, and completed A.H. 901; and the whole of it was published in Calcutta A.H. 1245 and extracts therefrom have been printed.”
“The Nikayah (an-Niqayah), another elementary Law book, is the work of the author of the Sharh-ul-Vikayah. It is sometimes called the Mukhtasar ul-Vihayah, being, in fact, an abridgment of that work. Three comments on the Nikayah are much esteemed: they were written respectively by Abu ul-Makarim Bin Abdullah (A.H. 907), Abu Ali Bin Muhammad al-Birjindi (A.H. 935), and Shams ud-din Muhammad al-Khurasani Al Kohistani (A.H. 941). The last commentary is entitled the Jami-ur-Rumuz (Jami’u ‘r-Rumuz), which is the fullest and the clearest of the lot. sea well as one of the most useful law books.”
“The Ashbah wa an-Naza’ir (al-Ashbah wa ‘n-Naza’ir) is also an elementary work of great reputation. It was composed by Zain al-Aabidin, the author of the Bahr-ur-Raik already mentioned. Hájl Khallfah speaks of this work in high terms, and enumerates several appendices to it that have been composed at different times. The treatise on exegesis entitled the Nur-ul-Anwar-fi Sharah ul-Manar (Nuru ‘l-Anwar fi Sharah ul-Manar). by Shaikh Jun Bin Abel Sayyid Al-Makki (Shaikh Jiwan ibn Abu Sa’id), was printed in Calcutta (A.D 1819), and is frequently referred to as a book of authority. A small tract on the sources of the Sharaa, entitled Usul-ush-Shashi, together with an explanatory commentary, was printed in lithography, at Delhi, in the year A.D. 1847.”
“The Tanwir-ul-Absar (Tanwiru ‘l-Absar), composed by Shaikh Shams-ud-din Muhamamad Bin Abd-ullah-al-Ghazi (A.H. 995), is one of the most celebrated and useful books according to the Hanafi doctrines. This work has many commentaries. One of them, entitled the Manh-ul- Ghaffar (Manhu ‘l-Ghaffar), which is written by the author himself is a work of considerable extent.
“The Durr-ul-Mukhtar, which is another commentary on the Tanvir-ul-Absar, is a work of great celebrity. This work was written (A.H. 1071) by Muhammad Ala-ud-Din Bin Shaikh Ali al-Hiskafi. Though a commentary, it is virtually a digest, which of itself has several commentaries, the most celebrated of them is the Tahtavi a work used in India. Another commentary on the Durr-ul-Mukhtar is the Radd-ul-Muhtar. This is a very copious work, comprising an immense number of cases and decisions illustrative of the principles contained in the principal works. The Durr-ul-Mukhtar treats not only of the Fikah but also of the Faraiz. It is used by the followers of the Hanifi doctrines where ever they are, but it is most highly esteemed in Arabia, where it is studied and referred to in preference to other books of law.”
“Many works have been written according to the doctrines of Abu Hanifah in the Turkish Empire, and are received there as authorities. The most celebrated of those is the Multaka-ul-Abhar, by Shaikh Ibrahim Bin Muhammad al-Halabi, the Durr-ul-Hukkam, by Mullah Khusru, Kamin-namai-Jaza a tract on penal laws, &c.”
“The treatises on the laws of inheritence according to the doctrines of Shafi, are the Faraiz–ul-Mutawalli, by Abu Sayid Abd-ur-Rahman Bin Mamun-ul-Mutawalli (who died A.H. 478), the Faraiz-ul-Mukuddasi by Abu-ul-Fazi Abd-al-Malik Bin Ibrahim al-Hamadani Al-Mukuddasi, at Abd Munsur Abd-ul-Kahir Al-Baghdadi who died respectively in A.H. 489 and 429); Al- Faraiz-ul-Fazari, by Burhan-ud-din Abu Ishaq Al-Fazari, commonly called Ibnu Firkrah (who died in A.H. 729), and Al-Faraiz ul-Farikiyah by Shams-ud-din Muhammad Bin Killayri (who died A.H. 777).”
“Of the books on the law of inheritance according to the Hanifi doctrines, the most celebrated, and the one invariably consulted in India, is the Sirajiyyah (as-Sirajiyah),which is also called the Faraiz-as-Sajdwandi, being as it is, compossed by Siraj-ud-Din Muhammad bin Abd-ur-Rashid as-Sajawandi. This work has been commented upon by a vast number of writers, upwards of forty being enumerated in the Kashf-uz-Zunun, by Haji Khalifah. The most celebrated of these commentaries, and, the most generally used to explain the text of the Sirajiyyah, is the Sharifiyyah (ash-Sharif iyah), by Sayyid Sharif Bin Muhammad Al-Jurjani (who died A.H. 814).”
“There is another kind or digest which treats of the Ilm-ul-Fatawa (the science decisions). The works of this nature are also very numerous, and are, for the most part called Fatawa (decisions), with the names of their authors; and, though called Fatawa most of them contain also the rules of law as well as legal decisions. Of those again some treat of the Fikah alone, others of the Faraiz (inheritance) also, some of them, moreover treat of the decisions of particular lawyers, or those found in particular books others treat of those which tend to illustrate the doctrines of the several sects; whilst the rest of them are devoted to recording the opinions of learned jurists.”
“There are several collections of decisions, according to the doctrines of Shfii. The one most esteemed seems to be the Fatawa Ibn as-Salah, by Abu Amru-Usman Bin Abd-ur Rahman ash-Shabrazuri, commonly called Ibn us-Salah, who died in A.H. 642. Ibnu Firkah, the author of the Fasaiz-ul-Fazdri (a treatise on inheritance), also made a collection of decisions according to the same doctrines, which is called, after his name the Fatdwa-i-Ibnu Firkah.”
“Of the Fatawas of the Hanifi doctrines the following are generally known in India. The Khulasat ‘ul-Fatawa (Khulasatu ‘i-Fatawa), by Imam Iftikhar-ud-Din Tahir Bin Ahmad Al-Bukhari, who died A.H 542, is a select collection of decisions of great authority. The Zakhirat–ul-Fatawa (Zakhiratu ‘l-Fatawa), sometimes called the Zakhirat-ul-Burhaniyah, by Burhan-ud-Din Bin Mazah al Bukhari, the author, of the Muhit-ul-Burhani, is also a celebrated, though not a large, collection of decisions, principally taken from the Muhit. The Fatawa-i-Kazi Khan, by Imam Fakhr-ud-Din Hasan Bin Mansur al-U’zjandi al-Farghani, commonly called Kazi Khan, who died A.H. 592, is a work held in very high authority. It is replete with cases of common occurence, and is, therefore, of great practical utility, more especially as many of the decisions are illustrated by proofs and reasoniug on which they are founded. The two works entitled the Fusul-ul-Istursishi and Fusul-ul-Imadiah, were incorporated in a collection entitled the Jami-ul-Fusulain, which is a work of some celebrity. It was compiled by Badr-ud-Din Muhammad, known by the name of Ibn-ul-Kazi Simawanah (A.H 823). The Fatawa az-Zahiriyah, which contains decisions collected partly from the Khizanat-ul-Wakiyat, was written by Jahir-ud-Din Abu Bakr Muhammad Bin Ahmad al-Bukhari (A.H. 619). The Kuniyat-ul-Muniyat is a collection of decisions of considerable authority by Mukhtar Bin Mahammad Bin Muhammad as-Zahidi Abd-ur-Rija al-Ghazmini, surnamed Najm-ud-Din, who died A.H. 658. An-Navavi, the author of the biographical dictionary entitled the Tahzib-ul-Asthma (Tahzibu ‘l-Asthma), who died A.H, 677, made a collection of decisions of some note, which is called the Fatawa an-Navavi. He also composed a smaller work of the same nature, entitled al-Musil-ul-Muhimmat (‘Uyun al-Masa’ili ‘l-Muhimmah), arranged in the manner of question and answer. The Khizanat-ul-Muftiyin, by Imam Husain Bin Muhammad as-Samaani, who completed his work in A.H. 740, contains a large collection of decisions, and is a book of some authority in India. The Khizanat-ul-Fatawa, by Ahmad
Bin Muhammad Abu Bakr al-Hanafi, is a collection of decisions made towrds the end of the eighth century of the Hijrah, and comprises questions of rare occurrence. The Fatawa Tatar-Khamiyah was originally a large collection of Fatawas, in several volumes, by Imam Aalim Bin Ala al-Hanafi, taken from the Muhit-ul-Burhani, the Zakhirat, the Khaniyah, and the Zahriyah. Afterwards, however, a selection was made from these decisions by Imam Ibrabim Bin Muhammad al-Halabi, who died A.H. 956, and an epitome was thus formed, which is in one volume, and still retains the title of Tatar-Khaniyah. The Fatawa-i-Ahl-us-Samarkand, is a collection of the decisions of those learned men of the city of Samarkand who are omitted, or lightly passed over, In the Fatawa Tatar-Khamiyah and the Jami-ul-Fusulain, to both of which works it may be considered a supplement. The Fatawa az-Zainiyah contains decisions by Zain ul-Aabidin Ibrahim Bin Nujaim al-Miri, the author of the Bahr-ur-Raik and the Ashbah wa-an-Nazair. They were collected by his son Ahmad (about A.H. 970). The Fatawa ai-Ankzravi, a collection of decisions of al-Ankiravi by Shaikh-ul-Islam Muhammad Bin al-Husain, who died A.H. 1098, is a work of authority. The Fatawa Hammadiyah, though it seems to be a modern compilation, is a work of considerable authority.
“Tipu Sultan ordered a collection of Fatawis to be made in Persian by a society of the learned of Mysore. It comprises three hundred and thirteen chapters, and is entitled the Fatawa-i-Muhammadi.”
“Mr. Harrington, in his analysis (vol. i. 2nd ed), mentions a few other books of Fatawa, viz, the Fatawa Bazáziah, the Fatawa Nakshbandiyah, the Mukhtar-ul-Fatawa, and the Fatawa Karakhani. The last of these he describes to be a Persian compilation, the cases included in which were collected by Mullah Sadar-ud-Din Bin Yakub, and arranged some years after his death by Kant Khan, in the reign of Sultan Ala-ud-Din.”
“The following works of the present class, published at Constantinople, and containing decisions according to the doctrines of Abu Hanifah, may be noticed. A collection of Fatwas in the Turkish and Arabic languages, entitled the Kitabfi fi-Fikah al-Kadusi, composed by Hafiz Muhammad Bin Ahmad al-Kudusi in 1226. The Fatawa-i-Abd-ur-Rahim Effendi, is a collection of judgments pronounced at various times in Turkey, and collected by the Mufti Abd ur Rahim. It was printed in the year l827. Dabagzadeh Nuaman Effendf is the author of a collection of six hundred and seventy decisions which is entitled the Tufat us-Sukuk, and was published in the year 1832.”
“The Jami-ul-Ijtaratin, (Jami’u ‘l-Ijarat) is a collection of decisions relating to the law of farming and the tenure of land, by Muhammad Aarif. It was printed in the year 1836.”
“A, collection of Fatwa relating to leases was published at Constantinople by M. D Adelbourg, in the year 1838. Prefixed to this collection are the principles of the law of lease, according to the Multaka; and it is followed by an analytical table, facilitating reference to the various decisions.”
“Of the Fatwas which treat both of the Fikak and Faraz., two are most generally used in India. These are the Fatawa Sira-ji yyah and Fatawa Alamqiri. The Fatawa Sirajiyyah with, some principles, contains a collection of decisions in cases which do not generally occur in other books. The Fatawa Alamgiri, with opinions and precepts of laws contains an immense number of law eases This work, from its comprehensive nature, is applicable to almost every case that arises involving points of the Hanifi doctrines. Although opinions of modern compilers are not esteemed as of equal authority with those of the older writers on jurisprudence, yet being compossed by a great number of the most learned lawyers of the age, and by order of the then greatest person of the realm, the Emperor- Aurungseb Alamgar (by whose name the book is designated), the Fatawa Alamgiri is esteemed as a very high authority in India; and containing, as it does, decisions on cases of any shape based upon unquestionable authorities, this book is here referred to most frequently than any other work of a similar nature, and has not up to this day been surpassed by any work, except perhaps, by the Radd-ul-Muhtar, already spoken of during the long rule of the Muslims its India. the Fatawa Alamgiri alone appears to have been translated into Persian, by order of Zeb-un-nisa, daughter of the Emperor Arungzeb Alamgir. since the establishment of the British Government in India, the books of Jinayah and Hudud from the Fatawa Almagiri were translated into Persian, under the direction of the Council of the College of Fort William in Calcutta, by the then Kazi-ul-Zuzzat, Muhammad Najm ud-Din Khan, and were published in the year 1813, together with a Persian treatise on Tazirat, by the same author.”
“In the came year the book on Tazirat from the Durr-ul-Mukhtar was translated, printed, and published, by Monlavi Muhammad Khailil-ud-Din, under the orders of Mr. Harrington, the then Chitef Judge of the late Sudder Dewany Adawlut.”
“The Hidayah was translated into Persian by four of the most learned Moulavis of that time and of this country (India). Unfortunately, however, the learned translators have, in the body of the book, inserted many things by way of explanatory remark and illustrative expositions, instead of subjoining them in the form of notes. Furthermore, they have, in a considerable degree, deviated from the original. For all these reasons, we are warranted to say, that the Persian version of the Hidayah does not represent a true picture of the original.
“Macnaghten’s Principles of Muslim Law were translated into Urdu and lithographed, many years ago, in Dehli. Another translation of the same work was made and published in Calcutta a few years ago.
” The work entitled the Bighyat-i-Bahis, by Al-Mutakannah, which is a tract treating of Zaid’ s system of Faraiz was tranuslated into English by Sir Willian Jones. A translation of the Strajinayah also was made by Sir William Jones, who at the same time made an abstract translation of its celebrate commentary (the Sharifiyyah), with the addition of illustrations and exemplifications from his own brain and pen. A translation of the selected portions from the books of the Fatawa Alamgiri, which comprise the subject of sale, was published by Mr. Neil Baillie.”
“The Persian version of the Hidayah, already noticed, was, by order of Warren Hastings, commenced to be translated into English by Mr. James Anderson, but shortly after, he being engaged in an important foreign employment, the translation was finished, and revised by his colleague, Mr. Charles Hamilton. It is a matter of regret that the translation in question was not executed from the original Hidayah itself, instead of from its Persian translation, which contains frequent explanatory remarks and illustrative expositions interpolated in the book itself, instead of being subjoined by way if notes. Added to this, the Persian translators have, in a considerable degree, deviated from the original.”
“Of the digests of Muslim law in English, there first appears to be the chapter on criminal law of the Muslims as modified by regulations. This is incorporated in Harrington’s Analysis of Bengal Requlations. An abstract of Muharnmadan law, which is from the pets of Lieutenant-Colonel -Vans Kennedy, will be found in the Journal of the Royal Asiatic Society. ‘This work,’ says Mr. Morley, ‘ is well worthy the attention of the student.’ The work entitled the Principles and Practices of Muslim Law, written by Mr. (afterwards Sir) William Hay Macnaghten, is the clearest or easiest, if not the amplest or sufficient, work on that law hitherto written in English. Mr. Neil Baillie’s Muslim Law of Inheritance, according to Abu Hanifah and his followers, with appendix containing authorities from the original Arabic, is an excellent work of the kind. The treatise on inheritance, gift, will, sale, and mortgage, compiled by Mr F K Elberling, a Danish judge at Semampore, in the year 1844, contains principles of Muslim law, with these of the other laws, as used in India.”
“In the year 1865, Mr. Neil Baillie, the author of the work already mentioned, completed and published a digest of Muslim law on all the subjects to which the Muslim law is usually applied by the British Courts of Justice its India. It gives translations of almost all the principles and some of the cases contained in the Fatawa Alamgiri, the great digest of Muslim law in India, and quotes occasionally other available authorities. Being generally close to the original, and fully dealing with the subjects it treats of, this work must be said to he authentic, as well as the amplest of the digests of Muslim law hitherto written in English according to the doctrines of the Hanafi sect,” (See the Tagore Law Lectures, 1873, by Sharma Churan Sircar; Thacker, Spring & Co. Calcutta.)
II. – The Shi’ahs, although they are divided amongst themselves into numerous sects which differ from each other in various points of religious belief, are unanimous in rejecting the collections of Traditions of the Sunnis. The Sunnis arrogate to themselves the title of Traditionists, but this does not imply that the Shiahs do not receive the Hadis, but merely that they reject that the ‘six correct books” of their opponents.”
The works on Hadis compiled by the Shiahs are very numerous, and they maintain that they ham earlier and more authentic collections than those of the Sunnia. They say that in the time of al-Hasan and al Husain, a certain person who was grandfather to ‘Abdu ‘llah ibn ‘Ali ibn Abi Shu’bah al Halabi, collected traditions and gave them to his grandson for carefull record. This record was verified and corrected by Imam Ja’far as-Sadiq. The Sunni doctor, Abu Hanifah, was a pupil of this distinguished personage in his earlier days, but afterwards separated from him and established a school of his own.
There are four books of traditions, known as the Kutub-i-Arba’ah, which seem to beheld in the same estimation by the Shi’ahs, as the six Sahihs of the Sunnis. They are entitled the Tahzib, the Istibsar, the Kafi, and Man la Yastahzirah al-Faqih. [TRADITIONS.]
Mr. Shauna Churun Sircar, Tagore Professor of Law, has also reviewed the Shi’ah or Imamiyah, law books, and we are indebted to him for the following résumé:—
“One of the earliest works on civil and criminal laws was written by Abdullah Bin Ali al-Halabi. But it does not appear that any of his legal compositions are extant.”
“A number of law-treatises of the present class was composed by Yunas Bin Abd ur-Rahmman (already spoken of as a writer on traditions). The most famous of these treatises is entitled the Jami-ul-Kabir.”
“Several works on law were written by Abu al-Hasan Ali Bin al-Hasan al-Kumi, commonly called Ibnu Babavaih, one of which works is entitled the Kitabu ash-Sharayah. The Maknaa fi al-Fikah (Maqsa’ fi ‘l-Fiqh) is the best known of the law books of the present class composed by Abu Jaafar.”
“Abu Abdullah Muhammad an-Nuamani, surnamed the Shaikh Mufid, and Ibnu Mualhim, a renowned Shiah lawyer, is stated to have written two hundred works, amongst which one called the Irshad is well known. When Shaikh Mufid is quoted in conjunction with Abu Jaafar at-Tusi, they also ares spoken of as ‘the two Shaikhs’ (Shaikhain).”
“‘The chief works on law, written by Abd Taafar Muhammad at-Tusi (Abu Ja’far Muhammad at-Tusi), are the Mabsut, the Khilaf, the Nihayah, and the Muhit. These works are held in great estimation. and he is considered one of the highest authorities in law. The Risalat-i-Jaafariyah, which is likewise a legal treatise by at-Tusi, which is frequently quoted.
“The Sharaya ul-Islam, written by Shaikh Najm ud-din Abu ul-Kásim Jaafar Bin Muayyid al-Hilli, commonly called Shaikh Muayyid, is a work of the highest authority, at least in India, and is more universally referred to than any other Shiah law, book, and is the chief authority for the law of the Shiahs in India. A copious and valuable commentary upon the Sharaya ul-Islam entitle the Masalik ul-Afham, was written by Zayin-ud-din Ali as-Saili, commonl.y called the ‘Shahid-i-Sani, (second martyr). There are two other commentaries on the Sharaya ul-Islam respectively entitled the Madar ul-Ahkam and Juwahir ul-Kalam, the latter of which was written by Shaikh Muhammad Hasan an-Najafi.”
“Of the works on jurisprudence written by Yahiyah Bin Ahmad al-Hulli, who was celebrated for his knowledge of traditions, and is well known amongst the Imamiyah sects for his works, the Jami ash-Sharayu, and the MudKhhal dar Usui-i-Fikah are held in the greatest repute.”
“Of the numerous law books written by Shaikh Allamah Jamal-ud-din Hasan Bin Yusuf Bin al-Mutahhir al-Hulli, who is called the chief of the lawyers of Hilliah, and whose works are frequently referred to as authorities of undisputed merit, the most famous are the Talkhis ul-Maram, the Ghayit ul-Ahkam, and the Tahrir ul-Ahkam, which last is a justly celebrated work. The Mukhtalaf-ush-Shiah is also a well-known composition of this great lawyer, and Irshad ul-Azhan is constantly quoted as an authority under tbe name of the Irshad-i-Allamah.”
“The Jami-ul-Abbasi is a concise and comprehensive treatise on Shiah law, in twenty books or chapters. It is generally considered as the work of Baha-ud-din Muhammad Aamili, who died A.H. 103l.”
“The Mafatih, by Muhammad Bin Murtaza, surnamed Muhsan, and the commentary on the book by his nephew, who was of the same name, but surnamed Hadi, are modern works deserving of notice.”
“The Rouzat ul-Ahkam, written in Persian by the third Mujtahid of Oudh, consists of four chapters. The first of these is on Inheritance, which is treated of therein most fully and perspicuously. This work was lithographed at Luckuow, first in A.H. 1257, and again in A.H. 1264.”
“A general digest of the Imamiyah law in temporal matters was compiled under the superintendence of Sir William Jones. This book is composed of extracts from the work called the Kafi, which is a commentary on the Mafatih, as well as from the Sharaya ul-Islam. The manuscript of this digest still remains in the possession of the High Court of Judicature at Calcutta.”
“The earliest treatises on the Faraiz. or Inheritance, of the Shiahs appear to have been written by Abdul Aziz Bin Ahmad al-Azádi and Abu Muhammad al-Kindi, the latter of whom is said to have lived in the reign of Harith ur-Rashid.”
A work on the law of inheritance, entitled the al-Ijaz fi al-Farair has been left by Abu Jaafar Muhammad at-Tusi in addition to his general works on the Kuran, the Hadis and jurisprudence.”
“The best known and most esteemed works on the law of inheritance are the Ihtijaj ush-Shiah, by Said Bin Abdullah al-Ashari, the Kitab ul-Muwaris, by Abd, al-Hasan Ali Babavaib; the Hamal ul-Faraiz and the Faraiz ush-Shariyah, by Shaikh Mufid. The Sharaya ul-Islam, which, as already stated, is one of the highest authorities on the Shiah law, contains also a chapter on inheritance.”
“Of all the above-mentioned books on civil and criminal laws, those that are commonly referred to in India are the following: The Sharaya ul-Islam, Rouzat-ul-Ahkam, Sharah-i-Luma, Mafatih, Tahrir, and Irshad ul- Azhan.”
“Of the books on this’ branch of Muslim law, only that part of the Sharayah ul-Islam, which treats of the forensic law has been translated, though not fully, by Mr. Neil Baillie. A considerable part of the digest compiled under the superintendence of Sir William Jones (as already noticed) was translated by Colonel Baillie, out of which the chapter on inheritance has been printed by Mr. Neil Baillie at the end of the second part of his digest. of Muslim law. Although the chapter above alluded to is copious, yet it must be remarked that it is not so clear and useful as the Sharaya ul-Islam and Rouzat-ul-Ahkam.” (See Tagore Law Lectures. 1874, the Imamiyah Code, by Shama Churun Sircar; Thacker, Spink and Co.,Calcutta.)
Based on Hughes, Dictionary of Islam