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Questions about the prophet(PBUH)and Islam

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The Overfiend:
I wrote a law essay on it for a comparative law subject, heres some links I referenced that you could peep:


R.Upadhyay, ‘MUSLIM PERSONAL LAW: Should it be politicised', South Asia Analysis Group, 21 April, 2003, Paper no. 666, http://www.saag.org/common/uploaded_files/paper666.html

Sri Bipin Bihari Ratho, ‘Uniform Civil Code - A Reflection', (Gaurav Ghosh: 2000), http://www.hvk.org/articles/0900/124.html




But also heres some of what I wrote, if you read this you should have an understanding of it:

Muslim personal law is applied by the regular Indian court system and descends from British codification of Islamic law during the mid to late 1700s. Before India's independence the current legal system of Muslim personal law was referred to as ‘Anglo-Muhammadan' law. Originally, British colonialist courts applied personal law in accordance with the religion of the parties, as the British colonial Regulation II of 1772 stated: ‘in all suits regarding inheritance, the laws of the Koran with respect to Mahomedans, and those of the Shaster with respect to the Gentoos [Hindus] shall be invariably adhered to'.  However, British judges usually had little to no specialised training in Sharia law and being unfamiliar with the Arabic technical expressions due to their exact meaning being lost in translation through codification into English; the judges were often reluctant to apply Muslim law and instead would resort back to English law in deciding a case between Muslim parties. One such case is Moonshee Buzloor v. Shumsoonnissa Begum 1867, when the British colonial magistrates refused to apply Sharia law in regards to a Muslim marriage and instead decided the case on the basis of English law.   Originally the British colonial magistrates in India relied on local mufti's interpretations to apply Islamic law to the Muslim sections of the population.  Given the huge variety of opinion and difference of interpretation between the muftis; the British later codified Islamic law to make it more accessible to British judges. The codification of Islamic law ended British magistrate's reliance on the mufti's interpretations and in 1864 the muftis attached to the courts were withdrawn.  As a result, for the first time in history Islamic law was codified and translated from the Arabic interpretive tradition.  Through codification of Islamic law, the British altered and made Islamic law more rigid through application of the doctrine of precedent; stare decisis, a concept foreign to Islam.  The traditional Sharia way of applying and making law is called ijtihad, and instead of relying on precedent, the mufti would reach a decision on a case through independent interpretation of the Qur'an in regards to the particularities of a case.  However, through the doctrine of precedent the British magistrates side-stepped this relativist approach to applying law. Islamic law as applied by the British magistrate in India was not always strictly Sharia as it was often applied with Western legal influences, such as precedent and codification.  Because of this a chief criticism amongst legal reformers in Indian is that Muslim personal law is not Islamic law anyway, even though Islamic legal conservatives tend to defend it as such. *ref needed* Anglo-Muhammadan lawyers and judges were required under the doctrine of precedent to look to the decisions of higher courts; the highest being the Privy Council, that sat in London. The Privy Council later justified the introduction of the doctrine of precedent with Islamic jurisprudence in regards to the Islamic concept of taqlid that commands obedience to the pronouncements of classical Islamic jurists. Following the doctrine of taqlid, The Privy Council laid down rules of interpretation for the lower British Courts in applying Islamic law; the first being that the courts should not construct or interpret Sharia law in a different way to how it is traditionally interpreted from the classical Islamic jurisprudence.  The Privy Council specified these sources as The Hedaya, the Fatawa Alamgiri and the Shara'ai' al-Islam.  Also, in administering Sharia law the Privy Council ruled that the British Courts should not introduce new rules and concepts, even through interpretation of the ancient Islamic texts.   The Hedaya interpretation of the Qur'an allows for Muslims to marry up to four wives, it states:
‘It is lawful for a freeman to marry four wives whether free or slaves; but it is not lawful for him to marry more than four, because God has commanded in the Koran, saying "Ye may marry whatsoever women are agreeable to you, two, three, or four"'.
Polygamy was then allowed in India for Muslims and upheld by the British magistrates for Muslim men to marry up to four wives. The British magistrates also upheld the right of a Muslim wife to divorce her husband having entered into a pre- or post-nuptial agreement with the husband that she could divorce him should he take on another wife.  As the British gradually introduced uniform codes Anglo-Muhammadan law became confined to areas such as marriage, family relations, status, divorce, maintenance, property.  Throughout India there was different local customs concerning the application of Sharia law to Muslim life, in response the British passed the Muslim Personal Law (Shariat) Application Act in 1937 in order to abrogate local customary law and create a uniform code of law for Muslims in India.  With India's independence and the founding of the Indian Constitution there has been little change to Muslim personal law in India. The Indian Constitution was unable to provide for a uniform civil code, although Article 44 committed the State to pursue the promotion, development and implementation of one. A study done by the Women Resource and Action Group showed that 56% of Indian Muslim women want changes to Muslim personal law such as the abolition of polygamy, and that such changes should come from within interpretation of the Qur'an.  Today in India, the issue of a uniform civil code and Muslim personal law remains highly contentious and polygamous marriage represents a flash point between Islamic legal conservatives and calls for a uniform civil code or theological reformation of Muslim personal law in India.


Generally in Muslim society monogamy is the norm and polygamy the exception. Verse IV: 3, known as the ‘Verse of Polygamy' in the Qur'an says:
‘Marry women of your choice, two, or three, or three, or four; but if ye fear that ye shall not be able to deal justly (with them), then only one...That will be more suitable, to prevent you from doing injustice'.
Through this interpretation, Sharia law allows for marriage of up to four wives and this is the classical interpretation in Islamic jurisprudence. However, other interpretations of the Qur'an advocate a prohibition on polygamy, as later in the Qur'an Verse IV: 129 says:
‘Ye are never able to be fair and just as between women, even if it is your ardent desire'.
Modernist Islamic jurisprudence claims that as a man can never do justice among multiple wives, the Qur'an virtually prohibits polygamy.  For the modernists, justice among wives is not to be taken to simply mean in terms of food, lodging and clothing, but equality in love and affection; and this is impossible as Verse IV: 12 says so for the modernists the Qur'an by implication prohibits polygamy.  However the classical tradition within Islamic jurisprudence from where Anglo-Mohammadan law and, by extension Muslim personal in India today draws the majority of its textual authority, contends that the requirement of justice by the husband between wives only applies to maintenance and lodgement, and therefore there is no such prohibition on polygamy.  Instead, the condition of justice between wives is rather a private recommendation or a moral precept.  As a result, in India a Muslim man can contract a polygamous marriage whenever he likes. The classical Islamic schools differ in their approach to dealing with inequality in matters other than love within a polygamous marriage. In Hanafi law, a judge would have no power to dissolve a marriage where there was unequal treatment by the husband towards a wife in matters such as lodgement and maintenance.  Whereas in Maliki law, the marriage may be dissolved in the event of unequal material treatment of a wife within a polygamous marriage.  However, as illustrated earlier, the British colonial magistrates in India upheld the right of the wife to divorce a husband if he had violated a marriage contract not to take another wife.  In Sainuddin v Latifanness Bibi (1918), the British colonial magistrate in Calcutta ruled that a wife who had divorced herself from her husband after he took a second wife was empowered to do so through her reliance on a verbal post-nuptial agreement she had made with the husband not to take a second wife.  Despite the continuance of these rights under Muslim personal law, the codification of Islamic law by the British colonial magistrate in India likewise contributed to the ‘closure of the gate of ijtihad' as fresh interpretation in response to the changing social fabric was rendered stagnant.



Today in independent India polygamy is legal for Muslims due to continued application of the Muslim Personal Law (Shariat) Application Act of 1937 from the British period. Paragraph 2 of the Act states:
‘In all questions (save questions relating to agricultural land) regarding...marriage...the rule of decision in case where the parties are Muslims shall be the Muslim Personal Law (Shariat)'.
Muslim Personal Law (Shariat) Application Act 1937 is British colonial legislation that remained in force following India's independence and adoption of its Constitution. The Constitution Draft Committee that developed the Indian constitution favoured the enactment of a common civil code however; this was strongly opposed by Hindus and Muslims resulting in a failure to reach a consensus on a civil code. The particular religious personal laws, such as Muslim personal law, were left untouched by the Indian Constitution that came into force on 26th January 1950.  Considering the Constitution Draft Committee's failure to reach consensus for a civil code under the Indian Constitution, a compromise was reached under Article 44 that commits the State of India to endeavour towards the implementation of a uniform civil code for all Indian citizens. At the time of drafting of the Indian Constitution, members of the Constitution Draft Committee dissented at the exclusion of a provision for the establishment of a uniform civil code on the premise that separate personal laws, based on religion, would hold India back from developing nationhood and unity.  Article 44 of Indian Constitution says- "The State shall endeavour to secure the citizens a Uniform Civil Code throughout the territory of India".  The introduction of uniform civil code would have created a common law for all Indian citizens in relation to marriage, divorce, maintenance, etc, regardless of religious persuasion. Under Article 13, the Indian Constitution provided that all laws in force in the territory of India immediately before the commencement of the Constitution, remains in force so long as they are not inconsistent with the Constitution.  Due to the absence of a provision for a uniform civil code, the Muslim Personal Law (Shariat) Application Act  of 1937 remained consistent with the Constitution and, as a result continues in operation, upheld by the Indian Supreme Court.

King Tech Quadafi:

--- Quote from: Illuminati Clique on January 13, 2010, 12:06:27 AM ---. However, the British enforced polygamy and upheld it for Muslims in their colonial territories (what today are Pakistan, India, Afghanistan)
--- End quote ---

No sir

The Overfiend:
^
acknowledged.

Probably best to peep my essay on it above, should be more airtight.

The Overfiend:

Its not that the British 'created' Sharia law, rather they favored a political Koranic interpretive vein of thought in governance of their territories, that in turn helped define that religion's traditions. Muslim polygamy in India today, for instance, legally stems from colonial  British codification of the Arabic literature and interpretive tradition among Muslims in India. So for you to personally be a Muslim, polygamy is enforced upon you by the State as per your religious status. No longer then did itijihad apply..

My original point was about itijihad and it's demise in history.  



Itijihad was like the free thinking of Islam, that flame of consciousness within Islam, that light that spark [insert illuminati, paranoia invoking light/dark symbolism here]  ;)


Its like Islam loses constitutional right rep points when that gate is closed; when dogma and tyranny become mutually symbiotic. Its not just that though, its anything....


Democratic government and liberalism can pick up where religion falls off to provide an overall rule of law within where thought can habitate.  

Of course you can say the same type of loss of itijihad happens with democracy and liberalism....and BOOM post-modernism cuts through like a lobotomy.



'Not even the golden arthritis of King Midas can buy peace for the righteous'.

basudec1509:
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