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