A Study of the Requirements for Submitting a Thesis to Be Examined for a Higher Degree
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A STUDY OF THE REQUIREMENTS FOR SUBMITTING A THESIS TO BE EXAMINED FOR A HIGHER DEGREE Mohamed Jindani Submitted to University of Wales in fulfilment of the requirements for the Degree of Doctor of Philosophy In The Department of Theology and Religious Studies and Islamic Studies University of Wales, Lampeter 2005 ABSTRACT This Thesis entitled The Concept of Dispute Resolution in Islamic Law acquaints the reader with an introduction to the Qur' än, sunnah of the Prophet (s.a. a. s. ) and the many provisions relating to dispute resolution during the period of Divine revelation. The origins of the division of the community into Shia and Sunni is explored and explained in Chapter two. Two furthers chapters on dispute resolution one Sunni School the Mäliki School and one Shia School the Ismä`ili School are examined. The Thesis concludes with a detailed consideration of the concept of mahr, the possibleconflict with English law and the manner in which that conflict may be resolved. ACKNOWLEDGEMENT My thanks to my Supervisor Dr. Dawoud S. al-Alami of the University, for his supervisionand critical commentsand generalassistance that he gave me and without whose help and support this Thesis would not have reached completion. My thanks go to the Governors of the Institute of Ismail Studies whose generousconsent to my use of their excellent library and other facilities was an invaluable help. My thanksalso go to the library staff in particular to Dr. Duncan Haldane and Mr Al-Noor Merchant. My sincere thanks are also due to Dr. Faquir Muhammad Hunzai also of the Institute of Ismail studies for his translation of one of the Sifn arbitration agreements and all the Traditions of the Prophet (s.a. a. s. ) which were not available to me in English. I should like to express my appreciation to my wife Noorjehan Jindani and to my cousin, Rashida Noormohamed-Hunzai for their proof reading of the many drafts, comments and corrections and for their patient perseverance. iii TRANSLITERATION, VOWELS AND NOTES A. Transliteration: Many Arabic words were transliterated into Roman alphabet in this thesis. The Library CongressSystem (LC) is used for this purpose. They are as follows: = a t b z L, = t a Z. r. ü= th = gh = j ý+ =f. = h =q = kh =k = d c1 =1 = dh = in = r n = z -A =h c.31 = s w c= sh L Y 0.91 = 5 _ -a _ ý} (in construct state - at) B. Vowels: a) Long vowels: b) Short vowels: ä_a ü_a i Li :i C. Notes: 1 The proper names such as `Ali or `Abd Alläh and names of the well known cities such as Küfa and Madina have been spelt with the diacritical marks or where appropriate as internationally known save for Mecca which has been spelt as Makka. iv 2 In this thesis Abdullah Yusuf Ali's translation of the Qur'an has been used. 3 In the bibliography, author with Arabic names that begin with definite article `al' are listed according to their main surnames. For example, al- Tabari is included under T. 4 The letter (b.) is short for `Ibn' = son of, e.g. `Ali b. Abi Tälib. 5 The year of death is abridged to (d.) or if approximate (c.d. ) where appropriate. The Islamic (Hijri) dates are given e.g. 11AH (Anno Hijrae) and also where appropriate the corresponding dates given in the Christian calendar thus IOAH/632 and representing both the Islamic and the Christan Calendar (Anno Domini). 6 Where place or date of publication of a particular Book or Article is not available then the abbreviation either (n.d. ) or (n.p. d. d. ) has been used. 7 All the Constitutions referred to in Chapter Four are in my Possession. 8 Except where otherwise stated the Farmäns of H. H. Aga Khan III and IV are in the possession of individuals or may be accessedfrom The Institute of Ismaili Studies or The Religious Education and Tariqa Board in London. V ABBRIVIATIONS A. C. Appeal Cases All E.R. All England Reports C. L. J. Cambridge Law Journal EIS Encyclopaedia of-Isläm [Edition 2nd] F. L. R. Family Law Reports F.S. C. Federal Shari`at Court I. A. Indian Appeals I. L. R. Indian Law Reports P.L. D. Pakistan Legal Decisions P.L. J. Pakistan Law Journal P. Probate Q. B. Queens Bench s-.a. a. s. Salla-llahu 'alayhi wa älihi wa-sallam- S.C. M. R. Supreme Court Monthly Review T. L. R. Times Law Reports W. L. R. Weekly Law Reports v1 TABLE OF CONTENTS Page Nos. Abstract Declaration ii Acknowledgement Transliteration, Vowels and Abbreviations iv-vi Introduction 1-10 ChapterOne 11-68 The Concept of Dispute Resolution in Islamic Law The Qur'dn and Sunna of the Prophet Muhammad (s.a. a. s. ) Chapter Two 69-123 The SifJin Arbitration Agreement Between `Ali b. Abi Tälib and Mu`äwiya b. Abi Sufyän Chapter Three 124-180 The Concept of Dispute Resolution in the Mäliki School Imäm Mälik, The Muwattä, The 'amid of Madina ChapterFour 181-232 The Conceptof Dispute Resolution in the Ismd'Ili School The Authority of the Imäm from the Ahl al-Bayt Chapter Five 233-284 The Concept of Mahr (Dower) in Islamic Law A Resolution of a Conflict with English Law Conclusion 285-289 Bibliography 290-299 vii INTRODUCTION This thesis entitled The Concept of Dispute Resolution in Islamic Law is an attempt to examine the concept of dispute resolution and its varying interpretations in Islamic Law in one Shia and one Sunni School of law. It is important to emphasize that the authority for all Muslims (whatever their persuasion), in their daily lives and religious beliefs and practices is the Qur'an and sunnat of the Prophet (s.a. a. s. ), and in this connection one verse of the Qur'an, `Oh ye who believe! Obey Allah, and obey the Messenger, and those charged with authority among you. If ye differ in anything among yourselves, refer it to Allah and His Messenger,'2 occurs in each of the five chapters. The plurality of the Muslim world is an irreversible historical fact and 3 goes back to the time of the Prophet (5.a. a. s. ). His time was characterised by tribal differences, diversity of allegiances and as Isläm spread by different motivations for accepting the faith. In the fourteen hundred years since the Prophet (s.a. a. s.) passed away Muslims have come to live in different cultures, speak different languages and live in different geographical and political contexts. Although the Shahädah, (there is no god but Allah and Muhammad (s.a. a. s. ) is the Messenger of Allah), unites Muslims, they do differentiate in important aspects of interpretations of their faith. The division of the community can be traced back to the period after the murder of Caliph `Uthman b. `Af n, (d. 35AH/656) when the Muslim community split into two branches, or two 'By the sunna is meant Prophet Muliammad's (s. a.a. s. ) sayings (qawl), actions (fi`l) and approvals (tagrir). 2S4 v59 The Holy Qur'än (süra 4 verse 59). Hereafter cited as 4: 59 i. e., on the left side of the colon indicates the süra and the right side the verse/verses. 3Aga Khan III, Sir Sultan Muhammad Shah, Final Reconciliation between Sunni and Shiah Doctrines, Pan-Islam Series, No. 5, n.p. d. d. pp. 1-6. I Shl'as, Shl'at `Ali and Shi'at Mu`awiya. The appellation Shl'at `Ali came into use as a consequence of the two civil wars waged against the Prophet's cousin `Ali b. Abi Tälib, (d.40AH/661) on his accession to the Caliphate. The first was 4 known as the battle of Jamal (36AH/656). The second when the governor of Syria, Mu`äwiya b. Abi Sufyän (d. 60AH/680) challenged 'Ali's authority as the elected Caliph and took up arms against him at the battle of 5iffin (37AH/657). The Shl'at Mu`äwiya, in the course of time assumed the appellation ahl al-sunna 5 wa'l jamä'a, that is people of the sunna and community, or Sunnis. ShT'at `Ali, in due course became shortened to Shia. These then are two names given to the 6 two main branches of Islam, Shia and Sunni. Chapter One, entitled The Concept of Dispute Resolution in Islamic Law: The Qur'an and sunna of the Prophet (s.a. a. s. ), begins with an introduction to the Qur'an, Allah's last and final Message to mankind, and the sunna of the Prophet (s.a. a. s. ), their importance to Muslims followed by a brief explanation of why a chapter is devoted to the subject of dispute resolution. This is then followed by a letter of instruction written by `Ali b. Abi Tälib, to his newly appointed governor of Egypt, Malik al-Ashtar. The importance of the letter lies in the primacy it affords to both the authority of the Qur'an and the unanimously agreed sunna of the Prophet (s.a. a.s. ), in the concept of dispute resolution, in the rules of conduct of government, judiciary and those who seek to serve the community. 4'The Camel', the main thrust of the battle fought was close to Basra, near `A'isha, who was present during the fighting on a camel in a palanquin whose cover had been reinforced by iron plates. EI2, s.v. `Al-Djamal, ' Vol. 11,(Leiden, 1965), p. 414. 5'Tradition', EI2, s.v. `Sunna,' Vol. IX, (Leiden, 1997), pp. 878-881 6Hunzai, F.M., Oriente Moderno, Daniela Bredi (ed.), 'Islam in South Asia, ' (Rome, 2004), p.