(a) The Qur'an. The primary source of the Law of Islam is the Qur'an. The Qur'an, however, is not a legal code. Its main purpose, as I have said before, is to awaken in man the higher consciousness of his relation with God and the universe.36 No doubt, the Qur'an does lay down a few general principles and rules of a legal nature, especially relating to the family37 — the ultimate basis of social life. But why are these rules made part of a revelation the ultimate aim of which is man's higher life? The answer to this question is furnished by the history of Christianity which appeared as a powerful reaction against the spirit of legality manifested in Judaism. By setting up an ideal of otherworldliness it no doubt did succeed in spiritualizing life, but its individualism could see no spiritual value in the complexity of human social relations.
The important point to note in this connexion, however, is the dynamic outlook of the Qur'an. I have fully discussed its origin and history. It is obvious that with such an outlook the Holy Book of Islam cannot be inimical to the idea of evolution. Only we should not forget that life is not change, pure and simple. It has within it elements of conservation also. While enjoying his creative activity, and always focusing his energies on the discovery of new vistas of life, man has a feeling of uneasiness in the presence of his own unfoldment. In his forward movement he cannot help looking back to his past, and faces his own inward expansion with a certain amount of fear. The spirit of man in its forward movement is restrained by forces which seem to be working in the opposite direction. This is only another way of saying that life moves with the weight of its own past on its back, and that in any view of social change the value and function of the forces of conservatism cannot be lost sight of.
It is with this organic insight into the essential teaching of the Qur'an that we approach our existing institutions. No people can afford to reject their past entirely, for it is their past that has made their personal identity. And in a society like Islam the problem of a revision of old institutions becomes still more delicate, and the responsibility of the reformer assumes a far more serious aspect. Islam is non-territorial in its character, and its aim is to furnish a model for the final combination of humanity by drawing its adherents from a variety of mutually repellent races, and then transforming this atomic aggregate into a people possessing a self-consciousness of their own. This was not an easy task to accomplish. Yet Islam, by means of its well-conceived institutions, has succeeded to a very great extent in creating something like a collective will and conscience in this heterogeneous mass. In the evolution of such a society even the immutability of socially harmless rules relating to eating and drinking, purity or impurity, has a life-value of its own, inasmuch as it tends to give such society a specific inwardness, and further secures that external and internal uniformity which counteracts the forces of heterogeneity always latent in a society of a composite character.
Turning now to the groundwork of legal principles in the Qur'an, it is perfectly clear that far from leaving no scope for human thought and legislative activity the intensive breadth of these principles virtually acts as an awakener of human thought. Our early doctors of law taking their clue mainly from this groundwork evolved a number of legal systems; and the student of Muhammadan history knows very well that nearly half the triumphs of Islam as a social and political power were due to the legal acuteness of these doctors. 'Next to the Romans', says von Kremer, 'there is no other nation besides the Arabs which could call its own a system of law so carefully worked out.' But with all their comprehensiveness these systems are after all individual interpretations, and as such cannot claim any finality. I know the Ulema of Islam claim finality for the popular schools of Muhammadan Law, though they never found it possible to deny the theoretical possibility of a complete Ijtihād. I have tried to explain the causes which, in my opinion, determined this attitude of the Ulema; but since things have changed and the world of Islam is today confronted and affected by new forces set free by the extraordinary development of human thought in all its directions, I see no reason why this attitude should be maintained any longer. Did the founders of our schools ever claim finality for their reasonings and interpretations? Never. The claim of the present generation of Muslim liberals to reinterpret the foundational legal principles, in the light of their own experience and the altered conditions of modern life is, in my opinion, perfectly justified. The teaching of the Qur'an that life is a process of progressive creation necessitates that each generation, guided but unhampered by the work of its predecessors, should be permitted to solve its own problems.
You will, I think, remind me here of the Turkish poet Ziya whom I quoted a moment ago, and ask whether the equality of man and woman demanded by him, equality, that is to say, in point of divorce, separation, and inheritance, is possible according to Muhammadan Law. I do not know whether the awakening of women in Turkey has created demands which cannot be met without a fresh interpretation of foundational principles. In the Punjab, as everybody knows, there have been cases in which Muslim women wishing to get rid of undesirable husbands have been driven to apostasy.39 Nothing could be more distant from the aims of a missionary religion. The Law of Islam, says the great Spanish jurist Imām al-Shāṭibī in his al-Muwāfaqāt, aims at protecting five things — Dīn, Nafs, ʿAql, Māl, and Nasl.40 Applying this test I venture to ask: 'Does the working of the rule relating to apostasy, as laid down in the Hidāyah, tend to protect the interests of the Faith in this country?'41
With regard to the Turkish poet's demand, I am afraid he does not seem to know much about the family law of Islam. Nor does he seem to understand the economic significance of the Qur'anic rule of inheritance. Marriage, according to Muhammadan Law, is a civil contract.43 The wife at the time of marriage is at liberty to get the husband's power of divorce delegated to her on stated conditions, and thus secure equality of divorce with her husband. The reform suggested by the poet relating to the rule of inheritance is based on a misunderstanding. From the inequality of their legal shares it must not be supposed that the rule assumes the superiority of males over females. Such an assumption would be contrary to the spirit of Islam. The Qur'an says:
'And for women are rights over men similar to those for men over women' (2:228).
The share of the daughter is determined not by any inferiority inherent in her, but in view of her economic opportunities, and the place she occupies in the social structure of which she is a part and parcel. Further, according to the poet's own theory of society, the rule of inheritance must be regarded not as an isolated factor in the distribution of wealth, but as one factor among others working together for the same end. While the daughter, according to Muhammadan Law, is held to be full owner of the property given to her both by the father and the husband at the time of her marriage; while, further, she absolutely owns her dower-money which may be prompt or deferred according to her own choice, and in lieu of which she can hold possession of the whole of her husband's property till payment, the responsibility of maintaining her throughout her life is wholly thrown on the husband. If you judge the working of the rule of inheritance from this point of view, you will find that there is no material difference between the economic position of sons and daughters, and it is really by this apparent inequality of their legal shares that the law secures the equality demanded by the Turkish poet. The truth is that the principles underlying the Quranic law of inheritance — this supremely original branch of Muhammadan Law as von Kremer describes it — have not yet received from Muslim lawyers the attention they deserve.44 Modern society with its bitter class-struggles ought to set us thinking; and if we study our laws in reference to the impending revolution in modern economic life, we are likely to discover, in the foundational principles, hitherto unrevealed aspects which we can work out with a renewed faith in the wisdom of these principles.