Copyright Notice

Staff and students of the University of London are reminded that copyright
subsists in this extract and the work from which it was taken. This Digital Copy
has been made under the terms of a CLA licence which allows Course Users
to:

• access and download a copy;

• print out a copy.

This Digital Copy and any digital or printed copy supplied under the terms of
this Licence are for use in connection with this Course of Study. They should
not be downloaded or printed by anyone other than a student enrolled on the
named course.

All copies (including electronic copies) shall include this Copyright Notice and
shall be destroyed and/or deleted if and when required by the University.

Except as provided for by copyright law, no further copying, storage or

distribution (including by e-mail) is permitted without the consent of the
copyright holder.

The author (which term includes artists and other visual creators) has moral
rights in the work and neither staff nor students may cause, or permit, the
distortion, mutilation or other modification of the work, or any other derogatory
treatment of it, which would be prejudicial to the honour or reputation of the
author.

Course of Study: LA3028 Introduction to Islamic law

Name of Designated Person authorising scanning: Gay Clothier, Publishing

Manager, University of London International Programmes

Title: ‘Islamic family law’ Chapter 11 in International encyclopedia of

comparative law Vol.4, pp.105–08.

Author: Norman Anderson

Publisher: Tübingen and Martinus Nijhoff Publishers, 1983

55 II-105

III. ISLAMIC FAMILY LAW

Sir Norman Anderson*

A. INTRODUCTION into circulation are manifestly spurious. Further,

it can be shown that the consensus of all scholars
103. General remark. - It is impossible to treat had to win its way, comparatively slowly, against
the family law of Islam - which constitutes, in the more limited agreement of local jurists, and
point of fact, almost the only part of Islamic law can, in any case, very seldom be proved to have
which is still applied by courts all over the world existed; and that the vastly greater part of the
to the vast majority of Muslims - without some law is based on analogy or legal reasoning of a
explanation of the way in which this law as a more general nature.
whole is regarded by Muslims, has developed 105. Stability of Islamic family law. - Although
down the ages, and is being extensively modernised the divine law was in theory applicable to every
today. aspect of life, it was in family law and inheritance
104. The Islamic conception oflaw. -An extensive that it was always most meticulously applied.
discussion of the Islamic conception of law in This, of course, was the only sphere, other than
general and of its sources in particular can be that of personal piety and religious observances,
found elsewhere in this Encyclopedia.sos It will in which it was habitually followed by Muslims
therefore suffice to give a brief summary here. resident in a non-Muslim country. At least part
For every Muslim, the theology of Islam pre­ of the reason for this particular emphasis on
scribes all that he should believe, and the Shari'a family law may be found in the fact that the
(or sacred law) all that he should do or abstain Koran itself has much more to say about marriage,
from doing - for the Shari'a is much wider in its divorce and inheritance than about any other
scope than any system oflaw known in the WEST, aspect oflaw.
and covers morality as well as law. Since about the middle of the nineteenth cen­
The Shari'a is regarded by Muslims as firmly tury, a number of direct and indirect changes
based on divine revelation. But this does not mean affected Islamic law. In the OTTOMAN EMPIRE,
that Muslims believe that it dropped down from wide areas of the law were codified following
heaven in its present form. On the contrary, it is foreign, especially FRENCH models to replace
a lawyer's law built up by the great jurists from Islamic law. Only the codification of the law of
four major sources (according to the traditional obligations (in the Madjalla of 1876) was based
teachings of Islamic jurisprudence). From the on Islamic legal principles. Concomitantly, secular
Koran, as the ipsissima verba of God, written from courts were established which were staffed by
eternity in Arabic in heaven and revealed piece­ personnel trained in modem law schools and
meal to Mupammad, by the archangel Gabriel, as applied rules of procedure which matched the
occasion demanded; the· sunna or practice of new substantive law. However, these new devel­
Mupammad, as established by innumerable tradi­ opments did not affect Islamic family law.
tions (a};iidith) of what he said, did or allowed to Dittle, if anything, was done to codify or reform
be done, asal.so divinely inspired in content ifnot the Shari'a in the realm of family law or inherit­
in form; the idjmii' or consensus of the Muslim ance~This was almost everywhere still applied in
community, expressed by its leading jurists, as the traditional way. In this sphere, the only
yet another indication of the divine will; and the deviations from the classical texts were the result
~iyiis or the analogical deductions of the lawyers, of the retention of former customary practices -
based on one or other of the preceding sources. sometimes mildly, and in some cases flagrantly,
In point of fact it can be shown that even the contrary to orthodox teaching - by groups or
Koran was occasionally ignored in practice, and communities of converts to Islam.
in any case includes comparatively few verses of Similar de~elopments took place on the INDIAN
legal significance; that what Mupammad had him­ sub-continent where some areas of the law were
self said or done was not at first regarded as codified following the principles of ENGLISH law.
necessarily inspired, or of binding authority; and Again, however, the law of personal status, i.e.
that the vast majority of the traditions later put especially family law and inheritance, was es-

* Professor of Oriental Laws emeritus, University 5o5 See Afchar, this Encyclopedia vol. II eh. I
of London (England). subch. IV.
II-106 The Family in Religious and Customary Laws 57 Islamic Family Law II-III

sentially left unaffected, being aptly termed termed talf*: namely, the combination oCpart the Law of intestate succession of 1943, and the the advent of Islam it had, it seems, become usual
ANGLO-MUHAMMADAN law. of the doctrine of one school or jurist with part Law of testamentary dispositions of 1946. for this dower to be regarded as belonging to the
106. Methods of family law reform. - It was not of another to achieve a result which is in fact new, The OTTOMAN Family Law was replaced in woman herself rather than to her guardian, al­
until 1915 that codification of principles derived although each of its component parts can claim JORDAN by the Law of family rights of 1951, though it was to the latter that it was, and still is,
from the Shari'a but enacted by a secular legisla­ a most respectable ancestry. and in SYRIA by Decree-Law of personal status normally handed over and by him that part of it
ture was first applied in the area of family law. (2) Sometimes, instead, the reformers used a of 1953. Next, the TUNISIAN Code of personal is commonly expended in providing the bride
It was the miserable position of Muslim wives procedural device, under which they made no status was promulgated in 1956 and entered into with her djihaz (or those items which she usually
under the dominant opinion in the l:fanafi school pretensions to changing the substantive law but force in 1957 (with an addition in 1958); the brings to- the matrimonial home). While tl1e
which compelled the Ottoman authorities to have contented themselves with forbidding the courts MOROCCAN Code of personal status was promul­ dower (mahr or ~adaq) is essential to a contract of
recourse to this expedient. According to the to apply it in specified circumstances. This meant gated, in instalments, during 1958; the ALGERIAN marriage, the djihaz is usually regarded as only a
dominant l:fanafi doctrine a wife whose husband that failure to act in a prescribed way would Ordinance of personal status in 1959 (amended in matter of custom rather than law, except by
had deserted and failed to support her, for how­ result in a would-be litigant being precluded from 1963); and the IRAQI Law on personal status also Maliki jurists.
ever long a time, could never obtain a judicial any judicial enforcement of his claims. in 1959 (with amendments in 1963 and 1978). no. Islamic reforms. - With the advent ofislam
dissolution of her marriage, and exactly the same (3) Sometimes, again, neither of these expe­ Other major reforms include the Dissolution the customary law of marriage was extensively
applied to a wife married, without her knowledge dients sufficed, and the reformers were compelled of Muslim Marriages Act of 1939, in what was reformed, although its essential features were
or consent, to a leper or an imbecile whose to resort to a new interpretation of the ancient then BRITISH INDIA; the Muslims Ordinance of retained. Under the Shari'a, sex relations on the
affliction made married life positively dangerous. texts. This was, in point of fact, a much more 1957 and the Muslims (Amendment) Ordinance part of two persons between whom there was no
This was an intolerable situation which had to be straightforward method than that of talfik; but of 1960 in SINGAPORE; the Muslim Family Laws contract or semblance of marriage, or lawful
remedied. In the sphere of family life, however, the latter was commonly preferred because ·of the Ordina._nce of 1961 in PAKISTAN; and the Family status of concubinage, were made subject to
Muslims have very seldom been prepared to lay veil of traditional authority with which it covered Protection Act of 1967 in IRAN. savage sanctions, although these could seldom be
the Shari'a aside in favour of a law of different the face of innovation. imposed because of the exceedingly exacting
inspiration; so the reformers5° 6 could no longer (4) Legislative reforms were normally based standard of proof which was demanded. Classical
evade the problem ofhow to reform or modernise on one or the other of these three expedients. But B. CONCLUSION OF MARRIAGE Islamic criminal law generally is no longer im­
the Shari'a itself. But how could they do this occasionally they took yet another form: regula­ posed today, except in parts of the ARABIAN
without being accused of flying in the face of tions which were simply regarded as beneficial i. Classical Law peninsula. However, recently in LIBYA, PAKISTAN
divine revelation? They found the answer in four and described as 'not contrary to the Shari'a'. and IRAN there has been a tendency to return to
ingenious expedients, using sometimes one and a. Introduction the savage sanctions for a few precisely defined
Even these might in some sense be broughtunder
sometimes another as the circumstances of the the aegis of the sacred law by an appeal to those 108. Engagement. - In Islamic law marriage is a offences, but (very probably) without the exacting
case seemed to require. In so doing they not only precepts which exhorted Muslims to obey those contract, not a sacrament. It is normally preceded standard of proof on which the Shari'a insisted.
succeeded in introducing a large number of most set in authority over them. by engagement, which must be clearly distin­ The unfettered polygamy of pre-Islamic
beneficial reforms - not, of course (as a Muslim 107. New legislation on family law. - It may be guished from the marriage contract. Engagement, ARABIA was, moreover, abandoned in favour of
would insist), in the essence of the sacred law, but convenient at this point to give a list of the more as such, has no legal effect. The jurists normally a man's right to have no more than four wives at
rather in that law as it is administered day by day important ofthese legislative reforms in the sphere confme their comments to the fact that a would­ one time - according to the dominant and tradi­
in the courts - but also provided an admirable of family law. In 1915 the Ottoman Sultan issued be husband has the right to see the face and hands tional interpretation of the "Verse of Polygamy"
illustration of how a nominally immutable law two Imperial Decrees. These were followed in of the woman he proposes to marry, and to the in the Koran; and the right to marry an un­
can be changed in practice. 1917 by the OTTOMAN Family Law. This was circumstances in which - according to the dif­ restricted number of temporary (rnut'a) wives was
(1) By far the most widely used of these expe­ repealed in 1919 in TURKEY, but survived for ferent schools - the return of gifts given during retained, in the developed law, only by the
dients were legislative enactments requiring the many years in JORDAN and SYRIA and is still engagement, or in contemplation of marriage, Ithna 'Ashari branch of the Shi'a.5°7
courts to abandon the dominant doctrine of the applied today in LEBANON and ISRAEL - although can be demanded, should the intended marriage -A man was not allowedto marry his female
school of law which they habitually followed in somewhat modified in ISRAEL by laws of general never take place. slave (unless, of course, he first emancipated her);
favour of a different opinion, advocated by some application. 109, Customary Arabian law. - The essential but he could give her in marriage to another man,
other school or jurist, on this point or that (this Meanwhile, the reform movement had been features of the Islamic law of marriage go back whether slave or free. Alternatively, he could
is called takhayyur). At first this went no further exceedingly active in EGYPT, but no legislation to the customary law of ARABIA, and to a pattern himself enjoy rights of lawful concubinage with
than the choice of some weaker opinion in the was actually promulgated in that country until of life which was basically patriarchal. The mar­ her. In this case she acquired the status of umm
same school or the dominant doctrine of one of 1920, when Law no. 25 on maintenance and on riage contract was concluded between the pro­ walad if she bore him a child, which meant that
the other Sunni schools. This was soon extended some other questions ofpersonal status was enact­ spective bridegroom and the father, or nearest she would attain her freedom when her owner
to the doctrines of extinct schools, opinions at­ ed to effect piece-meal changes in the law of mar­ male relative of the bride, and it was to him that died.
tributed to early jurists or held by individual ju­ riage, divorce and paternity. The next major step the dower was paid as a sort of compensation for 1 II. Conditions ofthe marriage contract. - It seems
rists ofan independent cast ofmind, or even to the was taken by means of another Decree-Law the bride's procreative capacity. But even before best to disCJilSS the law of marriage in the way in
doctrines of heterodox schools - although the no. 25, this time of 1929, on other questions of
last was seldom acknowledged by the reformers. personal status which took the same process con­ by men on journeys or temporary visits; and some­
so7 It used to be said that a shi'i Muslim had not
Sometimes they resorted to what is technically siderably further. Later reforms in EGYPT included times they approximate to prostitution (especially in
completed his religion until he-had enjoyed a nmt'a
marriage. But such marriages are comparatively rare the environs of one of the major shrines). The Sunnis
today, and becoming progressively more so. Some­ not only forbid but look down on such marriages,
s06 Among the earliest of these reformers were Amin, Tai).rir al-mar'ah (Cairo 1900); the views of times they represent a long-term union of a lower although their own "permanent" marriages are some­
Mubammad Shakir, Qasim Amin and Mubammad 'Abduh Mubammad 'Abduh, as propagated by the periodical, social status than "permanent" marriages; sometimes times reduced to very short-term unions by means of
in EGYPT, but there were also many others; see Qasim al-Manar, were even more influential. they take the form of short-term unions contracted divorce.