Muslim Personal Law: A Book Review
Dr. Mozammel Haque
The Book titled Muslim Personal Law authored by Dr. Hashim al-Mahdi, published by Ta-Ha Publishers Ltd, London, is a timely written book because it deals with Muslim personal law which had its source in Shari’ah.
Doctrinal Development of Islamic Personal Law
In the Preface of the book, Dr. Hashim al-Mahdi narrated the historic and doctrinal development of Islamic personal law. He said, “In the earlier part of Islamic history the Islamic Judiciary had no other source of personal law than the injunctions of the Qur’an, the sunnah of the Prophet, peace be upon him, the legal opinions of his companions and the independent judgements of the judges themselves.
“Subsequently most judges followed the school of Abu Hanifa as it was the prevalent juridical school in the Abbasid period from the time of Imam Abu Yusuf’s appointment to the office of Chief Justice during the Harun al-Rashid’s reign. After that it became the official school of law in the Ottoman state, except for the administration of justice in Islamic Spain, North and West Africa which is based on the Maliki School of Law, and except for the Ayyubid period when it was based on all four schools of law – Hanafi, Maliki, Shafi and Hanbali,” said Dr. Al-Mahdi.
The Ottoman government promulgated a code of Shari’ah law on Family Rights which was effective in its dominions and some of those territories this code continues to be applied till today. Dr. al-Mahdi also mentioned in the Preface of the Book, “Egypt promulgated a law first in 1920 and then another in 1929, in both of which the same methods were followed as had been adopted in the case of the Ottoman Family Rights Law. Then in 1936, a committee was set up in Egypt under the chairmanship of the Shaikh of Al-Azhar, the Mufti of Egypt, the Chief Justice of the High Shari’ah Court, the Shaikhs of the four schools of law at the Jami’ al-Azhar, and representatives of the Ministry of Justice, the Faculty of Law, the Union of Lawyers and Judges and others as members, for the purpose of framing a comprehensive code of personal law. Successive meetings of this committee were held, but it accomplished only a part of its work.”
After the Second World War, since 1945, Syria entrusted the task of reviewing the Ottoman Family Law and to prepare a new draft to its prominent judges. Dr. al-Mahdi maintained, “In 1946, The Ministry of Justice deputed an eminent judge, Shaikh Ali Al-Tantawi, to Egypt for one year to prepare a draft of the personal law. In 1949 the government set up a committee to study and consider the draft, again in 1951, the Ministry of Justice constituted a new committee and strengthened it by inducting into it great scholars from the Faculty of Law and from among the judges, including two eminent Professors, Mustafa Ahmad al-Zarqa, Professor in the Faculty of Law, and Ali Al-Tantawi, the Shari’ah Qadi of Damascus. In 1953, the Syrian government gave its assent to the draft prepared by those great scholars and promulgated a law which is acted upon there till today.”
“This is the law,” said Dr. al-Mahdi in the Preface, “we have selected for presentation to all Islamic minorities of non-Muslim states, acting in accordance with the efficiency demanded of us after a long wait in this regard and desirous of accomplishing the work within the time limit set for us. We have selected this law because its preparation matured for nine years at the hands of eminent scholars and committees, first in Egypt and then in Damascus, and because it has dealt with all that needs to be dealt with in the present day.”
Introductory summary of the basic principles
of Islamic Personal Law
While writing Foreword for the book, Professor Francis Lamand, President of the Paris-based Islam and the West, said, “This study is not a comprehensive treatise but an introductory summary of the basic principles of Islamic personal law which are relevant and applicable to the Muslim community in general and in minority Muslim communities throughout the world.”
Professor Lamand also mentioned, “This short work is also addressed to researchers and non-Muslims seeking to know about the Shari’ah objectively, a subject which is so often misunderstood in non-Muslim countries where too often Shari’ah is thought to be a collection of repressive laws which are both discriminatory and backward and which contradict and offend modern notions of human dignity and human rights. In reality, it is quite otherwise. The reader will be struck, for example, with the similarity of certain legal stances in Islamic personal law to Western law in cases of the protection of the family, marital rights of the spouses, child custody and laws relating to handicapped people.”
“Having taught law in both French and Islamic Universities, I am delighted to encounter a study which is distinguished by its clarity and concision, is undertaken with objectivity and which should lead to a more balanced approach to Islamic personal law devoid of prejudice and thus lead to a better knowledge of those values common to both our society and Muslim society, “said Professor Lamand in his Foreword and argued, “For the spirit of the Shari’ah, which emanates from divine revelation, also embodies overall principles of equity, human solidarity and social justice. Generally speaking, notions of equality and fairness inspire the rules of jurisprudence applicable to both individuals and to the affairs of the Muslim family which is structured, stratified and strictly protected by Islamic law.”
Professor Lamand said, “The reader will increasingly perceive this imperative on reading this exposition of Dr. Mahdi.”
This book deals with some of the aspects of Muslim civil law
Barrister Ahmad Thomson wrote a long introduction of 10 pages to the book. In his introduction, he has discussed in detail about the contents of the book. Barrister Thomson said, “Dr. Hashim Mahdi’s book on Muslim Personal Law is a book which deals with some of the aspects of Muslim civil law which historically have been implemented both under Muslim and non-Muslim colonial rule. This book is worth reading for anyone who wishes to acquire more than a superficial knowledge of the subject. It summarises the main principles of those aspects of the Shari’ah which govern the most fundamental personal human relationships in a straightforward and yet comprehensive manner. As Dr. Hashim Mahdi makes clear in his Foreword, it represents a culmination of one of the mainstream Sunni attempts to codify these aspects of Islamic law, based on centuries of practical application and experience – and relying principally on the Hanafi Madhhab.”
“Although it is as impossible to codify Islam as it is to codify life itself; it nevertheless provides the reader with a reliable checklist of the identifiable features of the Shari’ah which govern the fundamental milestones in life which most people experience during their life’s journey: birth, childhood, marriage, divorce, death and inheritance,” he said..
The book opens up several aspects of the Shari’ah
Barrister Thomson mentioned, “The knowledge of a judge in a Shari’ah court would not be limited to the contents of this book, but a student of Shari’ah – who might one day become a judge – will find this book helpful in pursuing initial or intermediate studies. Dr. Hashim Mahdi recommends that it is utilised and implemented throughout the world by Muslim communities, whether they constitute a majority or a minority of the general population of any given country.”
Barrister Thomson argued, “This book represents more than a subject of study. It opens up several aspects of the Shari’ah which can be implemented today. And in the modern legal and social context this is significant: as more and more Muslim communities begin to emerge in countries in which the way of Islam is being established for the first time, the possibilities of Muslims actually living what their divine guidance calls on them to follow are always being identified, activated and established.”
“Ignorant people inevitable produce extreme interpretations of this guidance, but balanced Muslims seek only to follow a middle course through life. By leading their lives in this way, they seek the mercy and compassion of their Creator and the Originator of this guidance, in this world and in the next,” he mentioned..
Muslims secular legal right to follow the way of Islam
Speaking about the British Muslims and their right to follow the way of Islam, Barrister Thomson argued in the Introduction to the book: “As far as the Muslims living in the UK today are concerned, it is their secular legal right to be able to follow the way of Islam provided this does not interfere with the interests of public safety, the protection of public order, health or morals and the rights and the freedoms of others. The government of the day is under a legal duty to secure this right and to provide a remedy if this right is violated, while the courts of the land must have particular regard to the importance of this right in determining any question arising under the Human Rights Act 1998 which might affect the exercise by a religious organisation (itself or its members collectively) of this right.”
Barrister Thomson while writing an Introduction to the Book, mentioned about the proposals made to the Law Commission as early as in 2007. He said, “It was with this right firmly in mind that proposals were made to the Law Commission in March 2007, well before the Archbishop of Canterbury and the Lord Chief Justice raised the subject in public, as to how the laws of England could be changed in order to accommodate Muslim personal law, particularly by recognising Muslim marriages, Muslim divorces and Muslim inheritance and including the recognition of the binding nature of judgements passed by Shari’ah courts – which, as also proposed by the Lord Chief justice in his talk, would only be enforceable by recourse to the English civil courts.”
Speaking about the usefulness, simplicity of the book, Barrister Thomson said, “I have no doubt that this book will help many people to recognise and understand both the simplicity and profundity of those aspects of the Shari’ah which govern Muslim personal law. It may even encourage them to reflect further and contemplate what it would be like to live in a usury-free economy governed by a wise God-fearing ruler. Certainly it will be one of the means whereby Muslim personal law is eventually introduced and accepted as an invaluable part of the English legal system, InshaAllah – God Willing.”
About the author of the book
Dr. Hashim Mahdi was born and educated in the Kingdom of Saudi Arabia obtaining his PhD in the US and further qualifications in the UK. He is a fellow of the Islamic Academy, Cambridge, UK and has been associated with the Muslim World League in various capacities for almost two and a half decades, currently holding the post of International Strategies expert. He is at present visiting professor at the University of Paris-Sorbonne besides working on curriculum design for Dar al-Fikr secondary schools in Jeddah and working in cooperation with Ummul Qura University in Makkah. He is the author of a number of books which have been published in Arabic, French and English.
Book title: Muslim Personal Law
Author: Dr. Hashim Mahdi
Publishers: Ta-Ha Publishers Ltd., London, UK
Date of Publication: 2009