SOCIAL LEGISLATION UNDER ISLAM

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80-00926A000500050003-0
• Release Decision: RIPPUB
• Original Classification: R
• Document Page Count: 26
• Document Creation Date: December 14, 2016
• Document Release Date: April 4, 2002
• Sequence Number: 3
• Publication Date: August 24, 1948
• Content Type: REPORT

~.Ll',J.:1tlt ; . !fiN '? D3TFiICTE )
COUNTRY Arab States
SUPJECT Social Legislati.c n Under Islam
PLACE
ACQUIRED
DATE
ACQUIRED
25X1
USUALLY "'
RELIABLE RELIA8LE REI.IAOi E RELIANCE RELIADLE
THIS DOCUMENT CONTAINS INPOR' ATION AF7211T110 THE NATIONAL DEFE1495
OF THE IINCTkO STATES WITHIN THE MEANING OF TM3 SSiIONFOE ACT 5(1
U. S. C.. SI AND 52. AS ANINDLD. ITS TRANS V%;9104 ON THE dIVELAT1011
Of ITS CONT!MTS IN ANY MARKER TO r.N UNAUTHORIZED PERSON 15 PRO-
111017I0 SY LAW. REPRODUCTION 0." 7N1! FCNN IS PRUNIUITED HOW.
EVE R. INFORMSI'OT. CONTAINED IN BODY OF THE FON AEY 7C UTILIZED
AS D116110 IIECESSAIY NY THE RICIItiIMO AGE!CY.
SOURCE
D OCUMMNTARY
(;L!V-"A _ INTEL.~I IGEN -AGCY r-~
Approved For Release 2002 0 /24 : I -00926AOOb5a 066A
-GRACING OF SOURCE
On file in the CIA Library is a copy of an aiidress deliv.?ereO
by Vahan. H Ka enderian at the annual meeting of the Internat :1o ::..at.
Bar Association at The Hague, Augnnst 1948, entitled "SociL-I
legislation Under Islam". L!r Nalenderian attempts to ir:di:*awe
the .irr!nartance of the study of Islamic law to the nations of
the West and to show further that Islam's logical and uth".cal
values form part of a code which is substantially the, same
as th.t which prevails in the hest. In addition, there is a
discus,-:ton of the basic concepts of Islamic law.
STATE
CLASSIFICATION Rr,,STRICT1;D
i
NAVY NSRB
. DISTRIBUTION
AIR
-77
CANNOT
BE
CONFIRMED
BY OTHER
SOURCES
.
I F. --_-t 1'___..
{P!,OLABLY fC 'iOT
DOUBTFUL
tii_'iE ,.IflGE1)
THIS IS UNEVALUATED INFORMATION FOR TA E I E:af=Ah:OH
USE OF TRAINED INTELLIGENCE ANNL_YSTS
RES RED
Approved For Release 2002/07/24-: CIA-RDP80-00926A000500050003-0
25X1
25X1
DATE DISTR. 24 P0:71
NO. OF PA(ES
NO. OF ENCL
(LISTED SELOW)
SUPPLEMENT TO
REPORT No.
1.948
LECTOR'S PRELIMINARY GRADING
PROBABLY POSSIBLY
TRUE ITRUE
 Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
Press release
The peace and welfare of the world will be mater-
ially advanced if Christian and Mohammedan realize more clear-
ly the great ethical and legal bonds which bind them together
in religion and law, according to Vahan H. Kalenderian, member
of the New York Bar Association and of the faculty of Columbia
University, who will fly to The Hague next week to address the
International Bar Association in its annual meeting on the sub-
ject: "Islamic Law and Social Legislation." Mr. Kalenderian
will continue eastward, via Paris, Rome, Damascus, and Teheran,
where he will lecture on political, social, and educational
problems common to Near and Middle Eastern nations and the West.
He will take issue with those who count the position
of the Mohammedan woman one of degradation, pointing out that
early Islamic law protected her in marriage, inheritance, and
divorce with a completeness that western law has only recently
achieved.
Mr. Kalenderian's good will tour will involve meet-
ings with Near and Middle Eastern diplomats, professors, and
students, especially in Iran. His address to the Bar Associa-
tion will be translated into several languages, including Per-
sian and Arabic.
He is chairman of the Near Eastern Law Committee,
International and' Comparative Law Section of the American Bar
Association; member of the Foreign Law Committee of the Asso-
ciation of the Bar of the City of New York; member of the Amer-
ican Society of International Law; and member of the Council of
the American Foreign Law Association.
He will return to teaching and the practice of
lavf in New York City in November. .
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 Approved For Release 2002/07/24: CIA-RDP80-00926
SOCIAL LEGISLATION UNDER ISLAM
By
VAHAN H. KALENDERIAN
25X1
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 Approved For Release- 2002/07/24 : CIA-RDP80-00926A000500050003-0
0' bounteous man, since Heavens sheds over thee
blessings mild,
Inquire, one day at least, how fares misfortune's
child.
What holds in peace this twofold world, let this
twofold sentences show:
"Amity to every friend, courtesy to every foe."
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
SOCIAL LEGISLATION UNDER ISLAM'
Why is the study of Islamic law of importance to the
nations of the West? Are there ways in which its concepts
and practices can exert beneficial influence upon Western
culture at the present time? This paper addresses itself
to the thesis that a close analysis of Islam's logical- and
ethical. values will. reveal a rich, humane, and deeply re-
ligious philosophy active among many millions of men on
four continents-mien whose code is substantially the same
as ours, whose partnership in the business of main-
taining peace in the twentieth century is necessary for its
realization.
Islam is. one of the three great monotheistic religious
systems along with Judaism and Christianity. It is at
the same time one of the four great systems or law along
with the Hebraic, the Doman, and the Anglo-Saxon. This
dual role fulfilled by an ancient culture suggests in addition
a fruitful ground for research for the historian, the theolo-
gian, the lawyer, and the sociologist, who may trace original
social patterns in pro-Islamic history as well as modern.
These in turn, together with their influence upon many as-
pects of Asiatic, African, and southern European socio-
judicial history, may serve to cement cultural bonds be-
tween the East and the West, bonds whose potential in the
cause of peace and understanding has scarcely been tested.
Are these claims too optimistic? Before judging, let us
examine the facts beginning with the historical background
of pre-Islamic judicial procedure.
Islam, a term which applies equally to Mohammedan re-
ligion and law, has endured for 1367 lunar years according
to the Mohammedan calendar. The year 622 A. D. marked
its origin, the occasion known historically as Hejirah. No
native state of importance stood in Arabia at this period.
' An address delivered by Vahan H. Kalenderian at the annual
meeting of the International Bar Association at The Hague, August,
1948.
3
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
There were only numerous small settlements or tribes.
Mile the empires of Rome and Persia had carved vast
spheres of influence for themselves, Mecca was merely the
sanctuary of a small group of tribes who brought to it
various forms of wealth for trading purposes and offerings.
The very obscurity of this small region aided its growth,
enabled it to accumulate wealth, and advance its culture.
The social structure of ancient Arabia was knit by ties
of blood kinship and a common worship and set of customs.
Within the tribal group, however, the individual had little
independent recognition. The family or the tribe repre-
sented social and legal unity, asserting or defending rights,
avenging injury, punishing crime, and inheriting property.
And here, as in other primitive communities, God and the
worshipping unit were one and the concept was embodied
in the continuity of tribe and king. When Islam assumed
power in the Arabian communities, this structure was pre-
served in a] I essential features, saving only that community
of faith was substituted for the tie of blood.
'T'he arrival of Islamism occasioned tremendous reform in
this social set-up, for there was much that cried out for
improvement. Incest in its most objectionable form was
present; sex relations were loose; infanticide, excessive use
of spirituous liquors, slavery, blood feuds, and gambling
were taken for granted. The women filled degraded roles,
for they were chattels. Widows descended by right of in-
heritance. A daughter could be buried alive.
Those who accepted the tenets of Islam became a
brotherhood. Hence, the people of Mohammed, the children
of Allah, were in their own eyes a large family held to-
gether by their credo and against all others. To them
mutual help in all matters was a religious as well as a legal
obligation. Islam accepted immediately the hypothesis
that equality is a corollary of brotherhood, and equality of
men before the law became and is a major premise of
Mohammedan religious and legal theory. "Let them all
he equal before thee in respect of the justice and tribunal,
lest the powerful put their hope in thy partiality, and the
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
weak despair of their justice." 'T'hus spoke the Islamic
law. The head of this community of brethren, this race of
equals, was God himself. Since they did not put their
judgment before that of God, it followed that if He held
them equal, they must so regard each other, differing only
in individual qualities, in faith, and in observance of the
Divine precepts. (led thus personified the principle of
unity and order, the supreme power acting in the common
interest. h'urther, Islam admitted no mediator between
the individual and his God.
Islamic law was highly praised by Count Leon Ostorog
in his lectures delivered in the University of London:
"Considered from the point of view of its logical
structure, the system is one of rare perfection, and to
this day it commands the admiration of the student.
Once the dogma of the revelation to the Prophet is
admitted as a postulate, it is difficult to find a flaw in
the long series of deductions, so unimpeachable do they
appear from the point of view of formal logic and of
the rules of Arabic grammar. Chose Eastern thinkers
of the ninth century laid down, on the basis of their
theology, the principle of the Rights of Man in those
very terms, comprehending the rights of individual
liberty, and of inviolability of person and property;
described the supreme power in Islam, or Califate, as
based on a contract, implying conditions of capacity
and performance, and subject to cancellation if the
conditions under the contract were not fulfilled;
elaborated a law of war of which the humane,
chivalrous prescriptions would have put to the blush
certain belligerents in the Great War; expounded a
doctrine of toleration of non-Moslem creeds so liberal
that our West had to wait a thousand years before
seeing equivalent principles adopted."
* "The Angara Reform", 30-31.
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
To understand the philosophy governing a system
praised so highly it is necessary to understand the
Prophet's conception of his office. The connotation of the
Arabic for "Prophet" is the English "Apostle." The
series of messages delivered by Mohammed to mankind
carne as divine revelations from God himself. It was Deity
speaking through a chosen human. The collection of these
is the Koran, or Qr'an, ":reading." The unity of God is
its dominant doctrine. The prophetic function was not to
promulgate a new religion, but to revitalize and restore
the old. "Say ye: we believe in God and that which hatli
been sent down to us and that which hath been sent down to
Abraham and Isaac and Jacob and the Prophets and that
which bath been given to Moses and to Jesus and that
which bath been given to the Prophet from the Lord. No
difference do we make between them and to God are we
resigned." Here then was a broad and explicitly stated
assumption of universality and kinship with the rest of
humankind.
Thus, the Koran is of the nature of an enabling act,
rather than a code of laws. Concerned with the abolition
or existing evils, he recognized two general classes. Some
were obviously intolerable. For those he pronounced
specific legislation. Others, less reprehensible and perhaps
more difficult of eradication, received recommendations for
their amelioration.
The wisdom of this policy was vindicated by experience.
Whenever the prophetic example and precept set a stand-
ard too novel or too high, or was unacceptable because in-
consistent with customs prevailing where the religion was
introduced, the natural tendency was to revert to former
practices. Persia, where wine was used and temporary
marriages survived, affords striking illustration.
The individual emerged, then, faith replacing consan-
guinity as the unifying factor, conscious of duties and obli-
gations to himself, his neighbor, his state, and his God.
He was receptive to the influence of art and science. While
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
the rest of Europe was groping through the Dark Ages,
the Moorish universities in Spain aided the revival of
learning. While the Christian teacher was manipulating
the bones of the saints, the Arab physician practised sur-
gery. The schools and monasteries of Italy, France, and
Germany were struggling with limited information, when
Arab schools were engaged in the study of Aristotle and
Plato and stimulated by the works of Ptolemy, Euclid,
Galenus, and Hippocrates.
Islam provided a rigid spiritual monotheism to replace
fetishism and star worship which had prevailed in Central
Arabia. The new credo taught resurrection of the dead
and future judgment, doctrines which the earlier Meccans
apparently ridiculed. The new religion rested upon five
pillars : prayer, fasting, pilgrimages, alms, and acceptance
of two supreme protestations-" There is no god but God"
and "Mohammed is the Apostle of God." Despite the sys-
tematic statement of purpose and zeal in gaining adher-
ents, Muslirns exhibited a tolerant attitude toward other
religious and juridical systems, important in the light of
their far-flung conquests. The Muslims did not regard
their religion as destined for themselves alone. They were
dominated by the desire to share its enlightened precepts
with all mankind. It was held the business of the faithful
to establish the faith wherever their armies marched.
Their fervor met unimpeded success. By 653 the Saracen
scimitar had brought under its sway an empire as large
as that of Rome under the Caesars. Within forty-three
years after the Hejirah they had reached the Atlantic;
in their fifty-sixth they took Samarkand; Carthage fell in
the seventy-fourth and Toledo in the ninety-third. The
disarmed and conquered territories were compelled.to pay
a tax, prove a stable religion, and were in consequence
free of further interference. Thus, the use of wine and
swine was permitted Christians. Some issues were diffi-
cult to reconcile, as that of the admission of testimony of
non-Muslims, who could not or would not swear on the
Koran.
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 Approved For Release 2002/07/24: CIA=RDP80-00926A000500050003-0
Let its now examine briefly certain common topics of law
in the light of Islamic practice: liberty, property rights,
contractual capacity, equality, civil rights and allegiance,
and the role of government in men's affairs.
The Muslim jurists conceived and promulgated the prin-
ciple of libc~r?ty within the law; reasoning that liberty un-
restrained would result in self-destruction, they concluded
that law is the proper limit, and that this is determined
by utility-the greatest good of the individual or the so-
ciety. Utility and public welfare were synonymous.
Islam, moreover, asserts that man is endowed with rights
as well as duties. Valuable rights included freedom and
personal security. Slavery was the exception. The found=
ling is presumed to be free. A man claimed as a slave was
not bound to prove his freedom; the burden rested upon
the claimant. The presumption of freedom prevailed in
case of doubt. Nor could liberty be disclaimed at will;
a spontaneous admission of slavery is legally invalid. Con-
sistent with this philosophy of privilege and obligation,
Islamic law favors every practical activity and hQlds agri-
culture, commerce, and manual labor in high esteem.
Similar doctrine prevails in the enjoyment of property.
The world's goods were created for man's use, and man
under natural conditions is entitled to anything that exists.
God, by the institution of property, set a limit upon this
right, enabling each man. to secure the lot assigned to him
from the general stock. Earthly goods suggested useful
employment by man. Muslim law rejects the jus utendi et
abstandi of Roman law, and brands as squandering any
preemption of unneeded wealth. It insists upon modera-
tion in the use of riches.
Every man is presumed to be endowed with legal capac-
ity and may choose to assume obligations. Restrictions
are imposed, for obvious causes, upon the contracts of
infants and of persons afflicted with mental disease, or the
victims of prodigality, bankruptcy, or illness.
As to property, the owner may not exercise his right for
the injury of others without profit to himself, nor when in,
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
jury will result to others disproportionate with his own
benefit. "The science of law," says Abu Hanifa, "is the
knowledge of the rights and duties whereby man is enabled
to observe right conduct in the world and prepare himself
for the future life." Jurisprudence is thus a fusion of
law and theology.
Equality is a corollary of the brotherhood of faith. "The
white man is not above the black, nor the black above the
yellow; all men are equal before their Maker," and this
principle was proclaimed and practiced when almost un-
recognized in Christian society. Now equality is a per-
sonal relationship. Consequently, Moslems must keep their
pledges. The principle of good faith derives from the
affirmation of equality. A spirit of compromise and con-
ciliation dominates Islamic law in controversy on prop-
erty, reprisal being expressly forbidden. Abuses are ex-
emplified and prohibited-power of attorney may not be
given to an enemy of the defendant; a beast of burden
may not be rented to a cruel man; a slave girl may not be
sold to a libertine.
Islamic law agreed with Blackstone that it was not the
privilege of the subject to renounce sovereignty. Hence
apostasy and treason were synonymous. Non-Muslims
were accordingly denied the right of inheritance on the
ground that they were treasonable elements. But anyone
who professed the unity of God and the prophetic character
of Mohammed was a Muslim in good standing, whether he
achieved his status by birth or conversion.
The ruler or the head of the state is a trustee under
Muslim law. He cannot substitute his own authority for
traditional law, though he may prefer one of the accepted
systems. He may favor certain customs so that eventually
they gain the status of law, and he has all the rights of a
modern fiduciary in guarding the interests of his bene-
ficiary.
The sovereign is an integer of law. According to Muslim
precepts, God completed the legal edifice by establishing
a ruler, Imam or Calif, to whom He enjoined obedience.
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
However, no man as such is entitled to rule over his fellow
beings. I very form of authority, the relation of father
and children, guardian and ward, master and servant,
master and slave, ruler and subject, has no other founda-
tion than the will of God. Homage, though, is a religious
duty. The headship may only be held by one at a time,
and he must be endowed with moral and physical qualities
necessary to his office. A Calif or an Imam cannot be a
slave, since, if he cannot freely dispose of himself, he
cannot exorcise independent authority. He must be male,
have legal capacity, that is puberty and sanity, physical
integrity, wisdom and courage essential to defense in peace
and in war, of the interests entrusted. His life must con-
form with the divine precepts. Finally, he must be a
descendant of the family of Junahash, the tribe to which
the Prophet belonged.
7'he elective body is made up of those who by culture,
rank, ti orality, and experience in worldly aff airs, are suited
to be judges. This electorate is entrusted to the men of
the "Pen and the Sword," the civil and military notables,
and to them is given power both to "bind and to loose,"
that'is, to stipulate the bond on which rests the princely
power, and the obedience due from, and in the name of,
the whole community. Election is an. offer (igad) which,
if accepted, becomes a binding contract (aqd). By his in-
vestiture, the Calif or Imain binds himself to exercise his
power within the limits laid down by divine law; he must
provide for the temporal interests of Islam, the protection
of the frontier, the conduct of war against unbelievers,
internal security, management of public property, and the
administration of justice..
The Califate is then a public trust, having as its object
the service, the protection, and the enforcement of the holy
law. Like a shepherd, the Caliph embodies in his person
the unity of the flock. He is a trustee, and his actions
derive their legitimacy from the principle that a prince
must seek the welfare of the community. The people, in
turn, are bound to follow and obey their chief. Tradition
says that "Whosoever rebels against the Imam rebels
against God."
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
Law, (Shar), under Islam is the will of God, unlike our
concept, that of a code or standard approved by the people,
directly or through their respective governments, deriving
its authority from the reason, will and moral nature of
men. Submission to Shar is a social as well as a religious
duty. Justice, order, religion, law, and morals are aspects
or the same will.
The Koran is in a sense a chart for living. It is the
original source of Islamic law in point of time as in sub-
lime authority. It is the recognition of the supremacy of
law, confirmed by the Prophet himself. It is recorded that
"The Prophet said, `that which the Prophet of God had
made unlawful is like what God had made so.' " "I am
no more than man, but when I enjoin anything respecting
religion, receive it, and when I order anything about the
affairs of the world, than T am nothing more than man."
And again: "My words are not contrary to the words of
God, but the word of God can contradict mine."
The FTadith or traditional. standards fall into three cate-
gories : First, traditions of what the Prophet did himself
Sun.na; second, of that which lie enjoined by words; and
third, of.that which was done in his presence without his
disapproval. (The third must have consisted largely of
the customs and usages of pre-Islamic Arabs.)
The basic concepts in law, then, stem from four sources-
the Koran, and the body of Prophetic traditions; the Con-
sensus, (Ijma), or authoritative pronouncements of the
Prophet's. advisory council; analogies, (Quy,as), or laws
emanating from majority opinion among the Doctors in
cases where the Koran, Traditions, and Consensus, were
inadequate. The Quyas were or course derived by analogi-
cal reasoning. Legal codes were compiled on these bases
in the second and third Islamic centuries to treat of civil
and criminal jurisprudence and religious ritual. Reliance
upon Prophetic word or tradition was very great; when
Ma'adi was preparing to visit Yemen, the Prophet asked
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
the grounds upon which he would make decisions. "I
will judge them according to the Book of God," was the
reply. "But if that contains nothing to the purpose?"
"Then," was the response, "upon the practice of the
Prophet." But if that also fails you?" "Then I will.
male an effort to form my own judgment."
Theological and juristic authority appear divided into
two school:,, Sh.i,ahs and Sunni. The former contend that
leadership of the faithful descended by right legal to All
on the death of Mohammed and remains immemorially
vested in the descendants of All and Fatima. The Sunni,,
whose name derives from Sunnah, (practice or law),
favored the elective procedure, the first successor to Mo-
hammed having been so determined. Important influence
upon the development of jurisprudence and social legis-
lation has come from these two schools. For the Shiites
accept onl-\? those traditions handed down by All and his
immediate descendants-those who had seen the Prophet
and held familiar intercourse with him. The Sunnis ac-
cepted the traditions in their entirety, including decisions
of successive Califs as supplementary to Koranic text. In
the final analysis, therefore, these distinctions were politi-
cal and dynastic.
The law as determined by these standards was supple-
mented by reference to local custom and usage, or the civil
law. "Customary law" was distinguished by the jurists
from the Shar. It found little place in the legal treatises
of early jurists and theologians, except in Persia, where
the customary law was known as Urf and was extensively
applied by the civil judges. Whenever it was at variance
with the Shar, however, the latter prevailed. This tolera-
tion in matters of religion and law is exemplified in the
persistence of many Zoroastrian practises in Persia, where
also the Lunar calendar is disregarded, as is the Muslim
New Year.
Three other modes of reasoning merit attention, as illus-
trative of juristic evolution. The first was adopted by
Imam Abu ITa.nifa for relief from absolute logical depend-
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 f r
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
ence. As a corrective he conceived Istihsan, which means
"approbation," "liberal construction," or "juristic pref-
erence." The term was used to express the liberty of pro-
nouncing such a rule as the circumstances required.
Hamra was a Persian, and the usage of Medina had
little interest for him. Ile used few traditions, preferring
to extract from the Koran, by reason, the rule applicable
to the immediate case and suited to a variety of needs,
even though strict analogy indicated otherwise. His sys-
tem was of the nature of legal fiction, resulting in the ap-
plication of law in a sense undreamed by its original ex-
ponent. It was not developed by the exigencies of actual
issues, but was the product of beneficent casuistry. Hanifa
endeavored to construct a code which would resolve every
conceivable question. This has tended to broaden and
humanize Islamic law.
Abbasides allied themselves with this school, because its
philosophical breadth and casuistical potentialities com-
mended themselves. Later the Ottoman Turks accepted it.
Malik Abu Anas, 94-179 A. D., also perceived the neces-
sity for a surer instrument than analogy. He proposed
the use of Istislah-"Seeking Peace," or "Amending,"-
and held that knowledge was the appropriate means of
legal development. If the rule indicated by analogy is in-
consistent with actuality, resort should be to amendment.
By this process the jurist could avail himself of the powers
Hanifa advocated, but would be restricted in two direc-
tions. The rule of law deduced by analogy might not be
disregarded at the whim of the individual exponent or with
reference to the particular circumstances. It could be
superseded only if its application would work a general
injury, or be contrary to the public welfare. The concept
of public interest thus made its appearance in legal deci-
sions.
The third mode of reasoning, Ijtihad, has gained respect
almost equal to that accorded the four primary founda-
tions. Ijtihad means "Laboring hard," or "Studying in-
tensely to arrive at a sound opinion or judgment." The
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
authority of the 11M7u,jtt-ahids, "The One who studies or labors
hard", is not based on his holding any office in the state,
but upon his theological and juristic reputation and piety.
The law developed further through the wide discretion
permitted to the Gazis and Muffis in its administration.
The Fatawas, or decisions of the great Muslim judges, are
illustrations of its exercise. They settled points regarding
which authoritative tradition afforded no guidance, and
their decisions are comparable with the responsa pruden-
tium of Roman law. The power of theoretical exposition
confided in the canoeists through the development of Sunni
law did not extend to the conscience of the faithful. The
canons of the Shar were expounded by the head of the
priesthood, known in Persia as Mosh to hed, and in the
former Ottoman Empire as Sheik-ul-Islam.
Islamic law, through its eventual development, is adapt-
able to almost every conceivable exigency. Its extraor-
dinary flexibility has its analogy in the language of its
expression. Arabic is unrivaled as a vehicle of ideas.
What about the rights and duties of women in Moham-
rnedan countries? What provision did the law offer for
their comfort and protection? The general supposition of
the West is that women occupied an unenviable position
in the family and community. A recourse to the records
of law refute this false assumption. Let us consider briefly
the questions of marriage, dower, divorce, legal rights and
disabilities, and relation to and control of children.
A woman under Islamic law, occupies a position of
peculiar privilege. So long as she is unmarried, she re-
mains under the parental roof; and until she attains her
majority, she is, to some extent, under her father's, or his
representative's control. So soon as she is of age, however,
the law vests in her all the rights of an independent person.
She is entitled to share with her brothers in her parents'
estate. The proportion may be different, but the disparity
is regulated by a just appraisal.
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
The contract of marriage gives the man no power over
the woman's person beyond what the law defines, and none
whatever over her property. Her existence does not merge
with that of her husband. She remains an individual. No
doctrine of coverture is recognized; her property remains
her own. She may sue her debtors, without joining a next
friend or under cover of her husband's name. She may be
sued as a femme sole. She can receive property without
the intervention of trustees. She has a lien upon her
husband's estate for her ante-nuptial settlement. Her in-
dividual earnings cannot be wasted by a prodigal husband,
nor can she be ill-treated with impunity. She may alienate
or devise her property without her husband's leave. She
can enter into binding contracts with her husband, and pro-
ceed against him in law for their enforcement. She may
act as admninistratrix or executrix, or be appointed a
Mutwallich, or trustee of a charitable foundation.
She continues to exercise, after she has passed from .her
father's house into her husband's home, all the rights
which the law gives to men. All her privileges as woman,
wife, and mother are secured to her, not by grace, nor
by judicial caprice, but by the actual text of the law.
Marriage is a social duty expressed in a civil contract.
Its essentials are proposal and acceptance. The parties
should understand the contract clearly. If sui juris, they
should actually consent to its provisions. The husband and
wife should be carefully identified. Among the Sunnis the
presence of witnesses is considered necessary, but any ir-
regularity resulting from their absence is remedied by
consummation.
A valid marriage requires that there shall be a considera-
tion moving from the husband in favor of the wife, for her
exclusive benefit. This is called mahr or sadak in legal
treatises, and dain mailer, or dower debt, in common
parlance.
The mater is similar in its legal incidents to the Roman
donatio propert nuptias. It is a settlement in favor of the
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003 0
wife made prior to and in consideration of the completion
of the marriage contract. The essential difference between
the two is that the Roman dona.tio is voluntary, whereas
the mab.r is obligatory.
A. stipulation by the woman before marriage to abandon
her right to dower is inoperative, for the wife would still
be entitled to the customary dower. She may, after
mnarriage, discharge the husband or his liability, or make
over any property she may have received from him in its
satisfaction. Its amount is regulated by the parties' social
standards.
The. Shiah Shara'ya says: "There is no limit either to
the maximum or the minimum of dower," it being a matter
of contract between husband and wife.
The parties retain their personal rights against each
other and against third parties; and, according to most of
the.schools, have power to dissolve the marriage tie should
circumstances render this desirable.
The prohibited degrees are more numerous, but exhibit
somewhat the same characteristics as the Code Civile. The
prohibitions fall under four heads: absolute, relative, pro-
hibitive, and. directory.
a. Absolute prohibitions apply to legitimate and illegi-
timate blood relationship, alliance or affinity Or fosterage.
b. l.elative prohibitions apply to conditions which, until.
removed, render the marriage invalid. Upon their subse-
quent removal the union becomes automatically lawful
ab initio.
c. Prohibitive incapacity exists where the woman is al-
ready the wile of another man.
d. Directory prohibitions apply .where a woman is preg-
nant by her previous husband or master.
The power of the father to impose the status of marriage
on his minor children is recognized. It is known as jabr
and conceded with various modifications by all the schools.
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 r
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
The power of the father to give his children in marriage
without their consent may be exercised in the case of sons
until they have attained puberty, which is presumed, in the
absence of evidence to the contrary, upon the completion
of the fifteenth year.
An infant is incompetent to enter into a marriage con-
tract without the guardian's consent, though a marriage
contracted by a minor who is possessed of understanding
may be ratified by the guardian or the person who stands
in loco parentis. After the age of fifteen every contract of
marriage entered into on behalf of a youth or girl is de-
pendent upon his express consent; and, among the Hanafis
and Shiahs, the children of both sexes, upon attaining
majority, are free to contract marriages.
"It is not lawful for a guardian," says the Zledaya, "to
force an adult virgin into marriage. None, not even a
father nor the sovereign, can lawfully contract a woman
in marriage who is adult and of sound mind without her
consent, whether she be a virgin or not."
Though the right of jabr is theoretically absolute, there
are numerous restrictions upon. its exercise. The father
may not marry his child to one who is diseased, or to slaves,
idiots, and other ineligibles. If he should agree on behalf
of his minor son to pay a dower in excess of the infant's
means, or of the wife's proper dower, or marry him to a
woman of low position, the marriage would be similarly
invalid. Nor may the father arbitrarily refuse consent
to the marriage of his children. Any paternal act preju-
dicial. to the infant's interests is illegal and warrants
judicial interference to arrest its execution or to decree its
annulment.
The husband's responsibility for his wife's maintenance
arises when the contract takes effect, and the wife is
thereby subjected to marital control. It continues during
the union, and in certain cases, for a time following its dis-
solution. None is due under an invalid marriage, and. the
responsibility ceases upon a wife's refusal of cohabitation.
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 1
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
The Shara'ya enunciates the principle nthat "there is no
difference in the right of a wife to maintenance whether
she he a Mosleman or Zimmia, free or bond."
A wife is hound to live with her husband and to accom-
pany him wherever he may go. The law, however,
recognizes circumstances ;justifying a wife's refusal to
fulfil this obligation, such as habitual ill-treatment, de-
sertion over a long period, direction to leave his house, or
the husband's connivance in her doing so.
Temporary marriages are regarded as lawful by the
Akhbari Shiahs. This institution prevailed among the
Sabeans and Zoroastrians from early times and seems to
have persisted after their conversion to Islam, despite the
Prophet's prohibition. Such marriages are known as
muta'a, and are contracted for a fixed period, long or short.
The Sunnis and the M'utazilas regard such unions as in-
valid.
The peculiar terms of declaration of temporary marriage
are "I have united myself to thee" and "I have married
thee."
Thouglh not prohibited, marriage of a fatherless virgin in
the muta'a form is declared abominable. "If", says the
Shara-ya, "one should do so, he should refrain from con-
nubial intercourse." Such a marriage is to her prejudice,
and, lacking paternal guidance, she should not be subjected
to its degradation. Specification of dower is necessary, and
the period must be fixed. The Shara'ya states the in-
dispensable conditions :
(a) When term and dower have both been mentioned,
the contract is valid; but if there is no mention of dower,
while the term is provided, the contract is void; but if the
term is omitted and the dower is provided, the contract,
though void as a muta'a, is valid as a permanent marriage.
(b) Every condition must be mentioned, including pro-
posal and acceptance. No effect can be given to any ante-
cedent stipulation, unless incorporated in the contract;
neither can any subsequent provision.
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 r
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
(c) An adult End discreet female may contract herself'
in a muta'a marriage, and her guardian may not object,
whether she be a virgin or not.
(d) A woman so married may not be divorced, but the
parties become absolutely separated upon the expiration of
the prescribed term.
(e) A temporary contract of marriage creates no right
of inheritance in either party.
The children born of such a union are legitimate, and in-
herit from their parents as in the case of a permanent
marriage.
Mohammed's reforms marked a new departure from
Eastern customs affecting divorce. He restrained the
husbands' power, and gave women the right to obtain. a
separation on reasonable grounds. Toward the close of his
life he practically forbade its exercise by men without
arbitral or judicial intervention. He pronounced "talak"
to be the most detestable of all permitted things before
Almighty God, since it prevented conjugal happiness and
interfered with the proper rearing of children.
When the wife, owing to aversion to her husband, or her
unwillingness to fulfill. her conjugal duties, desires to obtain
a divorce, she may obtain release from the marital con-
tract by surrendering her dower; or some other property.
Such a divorce is called "khula." When a divorce is ef-
fected by consent of both parties, it is called "rubarat,"
and operates as a mutual release and discharge.
According to both Sunni and Shiaht, schools, when the
married parties have no cause of complaint, other than
mutual aversion due to incompatibility or other conditions,
they may dissolve the marriage tie by agreement. When
the husband is guilty of such conduct as snakes the matri-
monial life intolerable--when lie neglects to perform his
lawful duties, or fails to fulfil his contractual obligations,
or where there is insanity, or impotency existing prior to
marriage and incurable, the wife may present her complaint
to the Kazi or Judge, who has jurisdiction to grant the
decree.
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 1
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
Mohammed declared the maintenance of children a pa-
ternal obligation. Hedaya declares that "the maintenance
of minor children rests on their father, and no person can
be his associate or partner in furnishing it." Debts in-
curred by any person on their behalf are recoverable from
him. Difference of faith between father and child has no
effect upon the obligation. Correspondingly, the Prophet
directed that when their parents were infirm and old, and
unable to support themselves, the children should provide
For them. He required respect and consideration for
fathers and mothers with the admonition that "a. respect-
ful and obedient child shall attain to heaven in the foot-
steps of its mother."
The paternal responsibility and correlative authority de-
rive from considerations of the children's benefit. When
tenderness of age or weakness of sex indicate the need of
care, the mother's superior right to their custody is as-
serted; and only her own misconduct can deprive her of
the privilege. When the children are no longer dependent,
the father has the right to their charge and education,
and the guardianship of their persons.
Among the Shiahs, the mother is entitled to the custody
of her children without distinction of sex until they are
weaned, which is limited to two years.
After the child has been weaned, its custody, if a male,
devolves upon the father, and, if a female, upon the mother.
The mother's custody of a female child continues to her
seventh year. The father then becomes entitled to cus-
tody, but may allow the mother to retain the custody of
children of both sexes beyond the periods mentioned.
The consensus of all civilized systems is that a child's
paternity, born in lawful wedlock, is presumed to be in the
mother's husband, without any affirmation or acknowledg-
ment by him. "The child follows the bed." The husband
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
has the right of disavowal on the ground of inability of
access. Islamic law favors the usual presumption strongly.
According to the Sunni schools, it is so strong, that where
a child is born six months from the date of marriage, or
within two years after dissolution of the contract, a simple
denial of paternity by the husband will not destroy the
status. The P'atauwai "Alamgiri" holds that paternity does
not admit of positive proof because the connection of a
child with its father is secret. It may he ' established by
the father's word or by a legally constituted relation be-
tween the parents.
There are three degrees in the proof of paternity-the
first is a valid marriage ; the second an invalid marriage
which may come within the purview of one that is valid;
and the third, bondage.
The effect of the first is to establish paternity without
a claim, and to prevent its rejection by more denial, though
in the case of a valid marriage it may be rejected by l'aan
or imprecation, but not where the marriage is invalid.
The Shiahs upon the basis of a decision pronounced by
Ali during his Caliphate, recognize ten lunar months as
the ordinary period of gestation. They hold that in order
that ascription shall arise independently of acknowledg-
ment, the birth of the child nnist be at least six months
from the consummation of the marriage. They agree with
the Sunnis that when the child is born in circumstances
which give rise to the natural presumption of legitimacy,
nothing short of a proceeding in which the husband and
wife are put on their oaths, can affect the status.
Mohammed's solicitude for minor children is exemplified
by many portions of Koranic text. The duties, responsi-
bilities, and ethical standards of guardians are enumerated
in careful detail. The Book records: "Restore to the
orphans when they come of age, their substance; do not
substitute bad for good, nor devour their substance by add-
ing it to your own, for this is an enormous crime."
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
VII
Because pro-Islamic. Arabia. was a parental despotism,
based upon the idea of a joint family system of birthright,
no distinction existed between inherited or acquired prop-
erty. Sons at birth received a vested interest in their
father's o t.ate. Females could neither inherit nor dispose
of' property. They were themselves bought and sold in
marriage and were inherited by their male relatives.. Chil-
dren belonged to the owners of mothers. Distribution was
per capita, not per stirpes. Boys below the age of puberty
could not inherit, nor could they defend a potential inheri-
tance.
Mohamnied achieved these reforms : infants were no
longer disqualified; adoption and brotherhood by oath, a
legal fiction, were ruled illegal.
Trusts, or wakfs, had long been a. concern of custom and
law among the Mohammedan peoples. They were of three
classes, private, public, and quasi-public. Trusts could be
established only for the good of mankind. Those designed
for the sole worship of God were denied on the ground
that a close tie ought to exist between a producing good
and the people whom God intended should benefit. Wakaf
means literally "1. have bound up or detained." Establish-
ment of a trust for the founder, his children, relatives, or
the poor, was an act of piety and as such encouraged. It
could be for a person or a class or for an unborn child.
The i'oundor, of course, was obliged to divest himself of
all title in the property settled. He was often the guardian
of the goods thus dedicated. He could thus provide for
his family from generation to generation. By it lie could
evade the :strict letter or the law of inheritance and thus
prevent subdivision of his property. He also secured a
defence against future obligations, spendthrift successors,
and despotic government,, all under the aegis of religious
sanction and approval.
These, then, are some of the chief general and specific
items of Islamic law and social legislation which defined
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 r !.
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
the relation of religion and law to the government and to
the family and individual. Upon them rest the foundations
of Islamic society today in large measure and understand-
ing of them and their application is a necessary corollary
to the culture and mind of the Mohammedan.
Let me close with some emphatic references to certain
historical prejudices which have unfortunately colored our
Western concept of Islam. Few histories reveal the whole-
some and ethical force which Islam represented in contrast
to the moral and intellectual bankruptcy which character-
ized Europe after the fall of Rome in 410 A. D. Africa
was no better, displaying vice, feuds, disorganization, poly-
theism, idolatry, and barbaric social customs. To these
people Islam offered a new way of life, offered, it is true,
upon the choice of the scimitar or the Koran, but a way
infinitely better than the one prevailing. Standards of jus-
tice, mercy, and equality were preached with a force not
hitherto encountered. It is unfortunate that the West's
knowledge or Islam came through the Crusades, which an
impartial historian must admit resulted in part from eco-
nomic and political motives. And it is further unfortunate
that to many in Europe and America the Ottoman Turks,
who used the religion solely as an imperial lever, represent
the total or Mohammedans. To these people religion was
a garb, to be discarded at will, an instrument of degrada-
tion, cruel oppression of Christian and other non-Turkish
Muslim subjects. The unhappily prevailing understanding
of Islam, which ignores its vital and ethical force in society,
thus stems from Turkish abuse of the religion and should
be discounted as such.
To the scholar who has studied the points of contact
between Christianity and Islam where both are fairly rep-
resented, many points of strong similarity are evident.
Both faiths urge belief in a merciful God and are founded
on the idea of the brotherhood of man and upon faith in
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
 Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0
God and rmrn. The cyclonic impact of the Crusades, ap-
proached by both sides with emotion rather than just con-
sideration of claims and compromises, defeated re-a.p-
proachmeni between these two constructive forces for
nearly a thousand years. If each had met the other with
understanding instead of hatred, with cooperation instead
or destruction, with thoughts of unity instead of division,
this historic contact might have fused intellectual and
moral forces which would have dominated two civilizations
by spiritual rather than material forces. The Mohamme-
dan's reverent research in the glories of Greece, in mathe-
matics and natural science, so ably represented in the
flowering of universities such as Valladolid and Salamanca
during the Moorish period in Spain, might have been
shared with an intellectually and spiritually hungry Eu-
rope. It would then have been spared the formalism of
the Middle Ages and the excesses it entailed.
Is it too late to realize the advantages of such a spiritual
and intellea?.tual union in the interests of peace and the
advancement of man? I do not believe so. A few decades
only separate us from the new millennium. The essential
and basic postulates of Islam and Christianity still exist
and hold common treasure. A democratic world, respect-
ing the rights of the individual, cannot ignore any portion
of itself which reveres and practices brotherhood, faith,
and equality in human worth. Both religions as well as
the legal codes they endorse have many dormant forces.
Islam is a dominant faith, with adherents in every land and
upon all continents. I believe that the dawning era will
record upon the pages of history a universal and progres-
sive recognition of our common humanity-and that Islam
and Christianity will labor hand in hand in the writing of
these pages.
The Mohammedans have a phrase which occurs often
in every day speech which expresses the faith and hope
of right-thinking men everywhere-Inmshallah-"If God
wills."
Approved For Release 2002/07/24: CIA-RDP80-00926A000500050003-0