Islamic Law and Social Change: An Insight into the Making of Anglo-Muhammadan Law

Abstract

A majority of scholars criticize British Indian Courts for making Islamic law rigid and stagnant by relying only on the translations of selected classical legal texts and operating under the doctrine of precedent. This paper challenges that view. It argues that Anglo-Muhammadan law responded to social change by providing a venue for discourse to various classes of society. Judges, lawyers, legal commentators, ulema and politicians played an active role in the making and functioning of the legal system, despite holding divergent views. This paper focuses on the historical legal process by which shares and securities, along with similar types of incorporeal property, became a valid subject matter of waqf. As shares and securities were a new type of property under Islamic law, judges initially refused, on the basis of classical legal texts, to accept them as a valid subject matter of waqf. However, Muslim legal commentators supported such waqf, arguing that Islamic law accommodates social change. This view prevailed in the end, but the legal controversy around it stretched over three quarters of a century. By examining this historical legal process, this paper provides insights into the making of Anglo-Muhammadan law and identifies the contribution of various actors to its formation and development.