| General note |
THIS book embodies the substance of the lectures which I deli-<br/>vered in the University of Calcutta, as Tagore Professor for the<br/>year 1907, and I greatly regret that there should have been so<br/>much delay, due to reasons altogether personal to myself, in the<br/>publication of the book.<br/>The first Chapter is intended to be introductory, and its<br/>usefulness will, I trust, be apparent, especially with reference to<br/>the topics discussed in Chapters XI to XII. I ought to mention<br/>that, in writing the earlier portion of the first Chapter, I derived<br/>valuable suggestions from Mr. Macdonald's excellent treatise on<br/>Muhammadan Theology.<br/>Chapters II to V contain an exposition of '<br/>Al-Usul '<br/>or the<br/>Science of Law, as developed by the Muhammadan jurists be-<br/>tween the eighth and the fourteenth centuries of the Christian<br/>Era. Much of this part of the book is practically a translation<br/>of Sadru'sh-Shari'at's 'Taudih' which was written sometime in<br/>the fourteenth century and is recognized as a standard work on<br/>the subject. The other writings on Usul which I have largely<br/>consulted are Taftdzdnis" '<br/>Talwih ', which is a commentary on<br/>1<br/>Taudih ', Fakhru'l-Isldm's '<br/>Al-Usul '<br/>and its commentary '<br/>Kash-<br/>fn'1-Israr', '<br/>Musullumu'th-Thabut ', by Muhibbullah and its com-<br/>mentaries by Bahrul Ulum and others, '<br/>Attaqrir-wa't Tahbir ',<br/>by Ibn Hammam, '<br/>Nuru'l-Anwar ', by Mullah Jiwan ;<br/>'<br/>Jam'u'l-<br/>Jaw&mi' ', by Tajuddin Subki with its commentary by Al-M&halli<br/>and the gloss known as '<br/>Al-Ayatu'l-Bayyin&t '<br/>and '<br/>Al-Mukhtasar '<br/>by Ibn Hajib with Q&di Udud's commentary thereon.<br/>In writing the remaining chapters I have not had the same<br/>invaluable help of these eminent jurists, who did not think fit<br/>to pursue their investigations beyond the limits of the topics dealt<br/>with in Chapters II to V. In Chapters VI to XII, I have<br/>endeavoured to explain the fundamental theories and legal ideas on<br/>PREFACE<br/>which the different departments of the Muhammadan system are<br/>based and to set forth the important principles which impart to<br/>the Muhammadan legal code, under its several heads, its peculiar<br/>features. These theories and principles are to be found inter-<br/>spersed in such authoritative works on Muhammadan law as the<br/>'Hedaya', the '<br/>Sharhu'l-Viqaya '<br/>and others and also in the<br/>various treatises on Usul, already mentioned. It is always difficult<br/>to know exactly where one should draw the line in referring to<br/>the rules of law in illustrating the general legal ideas and rela-<br/>tions which form the proper province of jurisprudence, and it<br/>will be seen that I have referred to such rules in somewhat profuse<br/>detail. My reasons for doing so were two-fold; in the first place,<br/>the jurisprudence I have had to deal with relates to one particular<br/>system, and in the second place, the Muhammadan law is so<br/>seldom read with any care that I felt I should not be justified in<br/>counting on the possession of that quantum of knowledge of its<br/>rules which is necessary for the purpose of following the dis-<br/>cussions of the jurists, on the part of the ordinary student for<br/>whose benefit the Tagore Lectures were primarily instituted.<br/>I ought to state that throughout this treatise I have en-<br/>deavoured to represent the ideas of Muhammadan jurists as accu-<br/>rately as possible, and as far as possible in their own language,<br/>and at the same time to make their meaning quite clear to those<br/>who are only conversant with the modern forms and modes of<br/>legal expression. If I have failed in my effort in either direction,<br/>I would appeal especially to the indulgence of those scholars who<br/>are familiar with the difficulty of translating the ideas of a<br/>technical and abstruse subject expressed in Arabic into a modern<br/>European language.<br/>In spite of the shortcomings of this treatise, I hope that it<br/>will be of some practical use in helping those who are desirous<br/>of studying the Muhammadan law, to study it as the subject of<br/>a scientific system instead of treating it, as is the habit, I am<br/>afraid, of many lawyers in India, as an arbitrary collection of<br/>rules and dicta based on no intelligible data. Further, I venture<br/>to think that the contributions made by the Muhammadan jurists<br/>to legal thought will have a special interest to those who are<br/>interested in the science of jurisprudence, having regard not only<br/>PEBPAGB vii<br/>to the age in which those jurists lived, but the nature and the<br/>difficulties of the task which they set before themselves, namely,<br/>to construct the science of a system which is not only entirely<br/>self-contained, but in which law is an integral part of religion, so<br/>that Muhammadim Jurisprudence purports to be in fact a science<br/>of man's rights and duties both spiritual and social. I may also<br/>be allowed to hope that the book will be of some assistance to<br/>those who, though not directly interested in the study of law or<br/>its science, wish to understand the true basis and character of the<br/>principles which inspire and guide the lives and conduct of the<br/>Muhammadans or, to be more accurate, of the Sunni Muhammadans,<br/>that is, the followers of the four Schools of law specified in the<br/>title, who form the great bulk of the Muhammadan population of<br/>the world.<br/>In conclusion I wish to express my indebtedness to the Rev.<br/>Canon Edward Sell, D.D., M.B.A.S., in charge of the S.P.C.K.<br/>Press and Author of the '<br/>Faith of Iskim ', who was kind enough to<br/>revise the transliteration of the Arabic words, and to Messrs.<br/>S. Eanganadhaiyar, B.A., B.L., High Court Vakil, and P. Eundu<br/>Panickar, E.A., M.L., Advocate, who prepared the Index, the Glos-<br/>sary of Arabic words, the List of Original Authorities referred to or<br/>mentioned, the Table of Cases, the Contents and the Errata. |
