ISLAMIC

JURISPRUDENCE
ASSIGNMENT
TOPIC-

JUSTICE, EQUITY & GOOD

CONSCIENCE AS A SOURCE
OF MUSLIM LAW

SUBMITTED BY-
MOHAMMAD AAZAM
B.A.LL.B. (HONS.)
3rd SEMESTER S/F
ROLL NO. - 29

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ACKNOWLEDGEMENT

In preparation of my assignment, I had taken help and guidance of some

respected persons. As the completion of this assignment titled ‘Justice,
Equity & Good Conscience as a source of Muslim Law’ gave me much
pleasure. I would firstly, like to thanks my respected professor Dr. Ghulam
Yazdani Sir for giving me guidance throughout and introducing me to the
methodology of work.

I would also like to thank my classmates and friends for going through my
assignment and rectifying my errors and improving quality of my
assignment.

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CONTENTS
S. No. TOPIC PAGE
No.
i. Introduction 4-6

ii. Justice 7-9

iii. Equity 10 – 11

iv. Good Conscience 12 – 13

v. Conclusion 14

vi. Bibliography 15

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INTRODUCTION
The phrase “justice, equity, and good conscience” had its origins in the
famous Roman canonical law as it was understood by English jurists of the
sixteenth century. In the form in which it was introduced in England at that
time, it was “an appeal to the sources of law other than English common
law and statute law,” namely, “an appeal to the fundamental laws,
recognized universally.” 1 The intent of its implementation was to free
England from the authority during the reformation of the Church of
England at that time. After the end of the seventeenth century, the formula
made its way across the oceans into the legal language in India where
courts that were established by the East India Company in Bombay and
Madras were mandated to administer justice according to the rules of
equity and good conscience and according to the native laws already in
place.2After nearly one hundred years, this phrase was further revived in
1781 by the then Governor General Warren Hastings as he drew up
regulations to guide the fledgling British judicial administration and
system in India.

In most systems of law, akin to the English doctrine of equity, justice and
good conscience has existed. Muslim law is no exception to this
universally accepted phenomenon. Istihsan of the Hanafi School, and the
doctrine of maselihul mursala of Malik, are somewhat near to the English
doctrine of equity, justice and good conscience.

Istihsan is used to override the system of the Kiyas. In the words of Abdul
Rahim: “It may happen that law analogically deduced fails to commend
itself to the jurist, owing to its narrowness and as well as inadaptability to
the habits and usages of the people and being likely to cause hardships and
inconveniences. In that event also, according to the Hanafis, a jurist is at a

1
J. Duncan M. Derrett, "Justice, Equity and Good Conscience," Changing Law in Developing Countries,
edited by J. N. D. Anderson, Studies on Modern Asia and Africa, 2 (London: George Allen &Unwin,
1963), 128.
2
Ibid., 129-132.

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liberty to refuse to adopt the law to which the analogy points, and to accept
instead a rule which in his opinion would better be advance the welfare of
men and the interests of justice.” Thus, istihsan means equity or the juristic
preference. Schacht says that istihsan came to signify as a breach of strict
analogy for the reason of public interest, convenience or similar
considerations.

This is essentially a doctrine of Hanafis, and other schools of Sunnis did

not look at it so kindly. Masalihu Mursala as propounded by Malik allowed
the jurists to deduce the law on the basis of general consideration of the
public good, but the followers of the Maliki school could not make much
use of it as they thought it to be too vague to permit any deduction of rules
of the law.

Another source of Muslim equity is read by Fyzee in the directions given

to the Kazi to mitigate, in certain circumstances, such as, the rigorous of a
legalistic interpretation of the law. It is obvious that whatever directions
were issued to Kazi, or to whatever extent the doctrines of juristic
preference and public good might be stretched, they could not be utilized
to override the texts of the Qu’ran or the Sunna. They were, at best, used to
override Kiyas.

In its modern version, the doctrine of equity, justice and good conscience
essentially is a product of the British administration of justice in India. The
Regulations of 1781 laid down that in cases, for which no specific
directions had been laid down, the adalats were to act according to “equity,
justice and good conscience”. Thus, was introduced the doctrine of equity,
justice and good conscience which was interpreted to mean that the
application of rules of English law as modified to suit the Indian conditions
and circumstances as well.

This then led to the opening of an area where the rules of Muslim law were
blended with the rules of English law or where areas of English law were
super imposed on the rules of the Muslim law. By this process, several

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rules of Muslim laws were modified and brought at par with the changed
social conditions in India and other places too and with the English notions
of equity and justice.

For instance, Muslim law of pardanashin lady, of guardianship, of divorce,

of wakf, etc. has undergone considerable modifications in the evolving
times. The interference in the law has been made avowedly in only those
cases where the rules of Muslim law have been found wanting, or to be too
rigorous, or to be not in consonance with the notions of English justice and
equity.

One remarkable instance of this is law of pre-emption. Some High Courts

hold that the law of pre-emption is in regard with equity, justice and good
conscience, therefore, enforced it, while there were others who took the
contrary view.

Where the courts and the legal justice rendering bodies have been
expressly directed to apply Muslim law, the doctrine of equity, justice and
good conscience cannot be utilized to modify the law. Thus, this
Assignment on the topic, “Justice, Equity and Good Conscience as a
source of Muslim Law” intend to discuss these terms in even more detailed
manner.

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JUSTICE
Justice is a central theme in the Holy book of Qur’an, dictating the
traditions of law and how it should be put into practice. There are two
ways in which justice operates, that is, in a legal sense and in a divine
sense, as well. Regarding justice in the legal sense, Qur’an tells Muslims
not only how to conduct themselves, but also the importance regarding
relationships with other people. It states what the various punishments for
certain crimes should be along with its justification behind this reasoning
as well. Furthermore, the Qur’an also brings across the idea that anyone
who propagates the message of justice and acts accordingly would be
justly rewarded with their place in the jannah. With regard to this divine
justice, there has been a discourse between many commentators that are
debating how justice will be fulfilled for different people, although all
agree that Allah shall not do any injustice at any cost.3 It is debated as to
how the justice regarding non-Muslims function. Although Qur'an is not
direct on justice for non-Muslims but on three occasion, this book clearly
enunciates that the good deeds of the human beings belonging to other
religious backgrounds are not to be wasted before Allah.,4 and from these
verses, it can be inferred directly that the Creator i.e. Allah has nothing to
do with any religious background but the good deeds of the actor will
always be rewarded both in this world and hereafter too, enshrining the
justice for all by the Almighty Allah.

Originally the Concept of Justice within the Qur’an was actually a broad
term that applied to the individuals. Over the span of time, Islamic thinkers
thought to unify various political, legal and social justice which made
Justice a major interpretive theme within the arena of the Holy Qur'an.
Justice can be seen as the exercise of a reason and free will or the practice
of judgment and responsibility. The practices and exercises were guided by
two Islamic words, that are, Huquq meaning rights or obligations one owes

3
The Holy Quran 4:40
4
Ibid 2:62

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to someone or another and Hsan meaning generosity beyond obligations.
These words created a guideline for Muslims to abide by.

“Central to the prophetic conception of justice are three features:

relationships among men and towards God are reciprocal in nature, and
justice exists where this reciprocity guides all interaction; justice is both a
process and a result of equating otherwise dissimilar entities; and because
relationships are highly contextual, justice is to be grasped through its
multifarious enactments rather than as a single abstract principle.”5

The Qur'an places a great emphasis on knowledge, and the pursuit thereof,
as valuable, but links the intellectual well-being of people to a profound
awareness of God and justice, and emphasizes the compatibility of
knowledge with faith as well.6

Justice assumes such a prominence in Qur’an that it is regarded as one of

the reasons why God created the earth. The demands that the Quran makes
upon the individuals to uphold justice and oath is extraordinary,
transcending all bonds of a family and society. While justice is something
that one demands for oneself, more importantly, it is something that is to
be fulfilled for others, regardless of the cost to oneself, one's relatives or
one's own community.

God’s justice determines how one’s afterlife would be. One’s condition in
the afterlife, felicitous or painful, is determined by the degree to which a
person has affirmed the unity and justice of God and, because of which the
affirmation, has acted with justice and mercy toward one’s fellows.7

"The Qur’an makes it clear that justice decrees those who are in the fire
will remain there eternally; later commentary has also softened that reality
by interpreting it to mean that they will remain only as long as the fire

5
Rosen, Lawrence. "Justice". The Oxford Encyclopedia of the Islamic World. Oxford Islamic Studies
Online.
6
Farid, Esack. "Qur'an". Encyclopedia of Islam and the Muslim World. Macmillan Reference.
7
Smith, Jane. "Afterlife". The Oxford Encyclopedia of the Islamic World. Oxford Islamic Studies
Online.

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itself last, and that God in his mercy shall at last bring all souls back into
his presence in paradise".

The Qur’an also contains a double message with regard to justice for non-
Muslims as well. It appears that both proclaim the divine justice in the
afterlife for People of the Book will be their place in jannah (presuming
they have lived righteously), whilst concurrently declaring that people who
practice monotheism and live righteously will have nothing to fear in the
afterlife as divine justice shall reward them with a place in jannah.

Alternatively, it is suggested that in Allah’s infinite justice and mercy, He

will judge justly according to each individual’s intentions and deeds in
their lifetime. This line of reasoning follows the idea that we are incapable
of fathoming what this decision will be since we are imperfect as human
beings and cannot attain Allah’s perfection.8

8
Singh, N. K.; Arwan, A. R. (2000). Encyclopedia of the Holy Qur'an. Global Vision Publishing House.
p. 432.

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EQUITY
In the ordinary sense, equity is synonyms with the term of natural justice.
Initially this system was inspired by the ideas of natural justice but in
today’s times, equity is no more or no less than the common law. Many
defined it as ‘a body of rules existing by the side of an original civil law,
founded on principals and claiming incidentally to supersede the civil law
in virtue of a superior sanctity inherent in those principals.9 Equity was
important in the development of the English law because it resolved some
of the defects of the common law, which might otherwise have led to a big
loss of public confidence in the legal system. Equity arises out of the
processes of law applying, and is changed mainly by those who are
engaged in this task.

The purpose is not only to examine the image of qadi justice which
obviously understates the intellectual content of the Islamic law. This
image has also been amply rebutted and the rationality of the Islamic law
has been well established. Rather it is to examine another interpretation of
the Islamic law. This latter interpretation suggests that, despite the primacy
of the reasoning by analogy in developing of the law from the Qu’ran and
the sunna, a legal solution derived by such reasoning may, thus, be rejected
by the Islamic jurist in favor of one based on and justified by the term
"equity". Yet, the concept of equity as we know it in the West is the
antithesis of the Islamic view of the point that all law is derived from God
through the Qu’ran and the Sunna. Equity is grounded in the precepts of
the conscience, a preconceived set of norms existing apart from the
positive law. Although it can, and has in the U.S., become a complex of the
well-settled rules, principles and precedents which are a part of the positive
law, equity derives its legitimacy from the belief in the natural right or
justice beyond the positive law. This concept contradicts one of the most
basic premises of Islamic law, the total reliance on the revealed Word of
God in the Qu’ran and Sunna as the only primary source of the law. Some
9
Environmental Jurisprudence in India, By C. M. Abraham

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observers of the Islamic law have asserted that the notion of the equity is
embodied in the concept of a term known as istihsan. Istihsan, in its literal
meaning of the term, finds its root in the word, hasan (good) and means "to
deem something good", but there is a legal significance of istihsan which is
elusive and has been the subject of debate even among Islamic jurists.
Nevertheless, as we shall show, istihsan has never been maintained by the
Islamic jurists as reasoning based on an equity independent of the Qu’ran
and the Sunna. It first examines the works of Islamists who have
misinterpreted istihsan as reasoning based on equity. It then inquires into
the nature of istihsan as seen through the eyes of Islamic jurists who did
used the concept within the Islamic legal system. Finally, the attempts to
formulate a legal definition for istihsan derived from an analysis which
measures istihsan against a comparable concept in American common law
system.

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GOOD CONSCIENCE
“The knowledge of one’s acts, states, or characters, as right or wrong, the
faculty, power, or principal which decides on the lawfulness or
unlawfulness of our actions and affections, and approves or condemns
them, the moral faculty, a moral sense”. 10 The conscience originally
involves our ability to discriminate between mainly two options. The
conscience then also assumed the role of the judge, administering
judgment through guilt and the specter of the punishment.

English humanist lawyers in the 16th and 17th centuries have interpreted
conscience as a collection of universal principles given to a man by god at
creation to be applied by a reason; this gradually reforming the
medieval Roman Law-based system with forms of actions, written
pleadings, and use of juries and patterns of litigation. Along with law,
which is always the objective of morality, conscience helps a person
determine whether one is doing the right thing or wrong. Greek and Roman
philosophy also did engaged understandings of conscience, but usually in
the context of a guilty one – of feelings of regret for bad actions done.

This negative understanding of a conscience typical of the Greco-Roman

philosophy became more positively construed in the New Testament with
St. Paul and the fathers of the early Church. The education of what was
conscience is, has evolved from the teachings of the Church, the
responsiveness of indwelling of the Holy Spirit and charity. St. Paul
constantly reiterates that it has a good conscience, and encourages others to
act so that they will too. St. Augustine too recommends seeking a good
conscience.

10
Available at www.worldslastchance.com/christian-growth/a-good-conscience.html, accessed on 9th
November 2018

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The role played by the martyrs should also not be underestimated. These
witnesses to a conscience and conscientious objection to a state religious
power set a firm directionality in Christian teaching that conscience should
never be violated, even unto the death. The Reformation period was a
trying time for the conscience rights in Europe as political and religious
groups vied for power.

More recently, the Scholars of the Islamic thoughts have also continued to
promote conscience rights. God speaking to us, moral teachings of the
islam and the scriptures, behaviour of our near and dear ones and our own
behaviour are the primary sources of developing a good conscience.

The Quran about the conscience says that it is truly a reminder to which
anyone who will pay heed. Let one listen to the voice of conscience
because pure and noble conscience is the boon of the Almighty Allah,
which is the second form of rationality, intuition and even revelation. The
living conscience makes man a living personality close to a human kind
and God.

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CONCLUSION
Under Muslim Law principles of justice, equity & good conscience can
also be regarded as one of a source. Abu Hanifa, the founder of Hanafi sect
of Sunnis, expounded the principle that the rule of law based on analogy
could be set aside at the option of the Judge on a liberal construction or
juristic preference to meet the requirements of a particular case. These
principles of Muslim Law are known as Istihasan or “juristic equity”,
Istislah or “public good” & Istidlal or “method of reasoning”. With regard
to Muslim Law, Their Lordships of the Privy Council observed as follows:

“The Chapter on the duties (Adab) of the Qazi in the principle

works on Musalman Law clearly shows that the rules of equity and
equitable consideration commonly recognized in the Courts of Chancery in
England, are not foreign to the Musalman system, but are in fact often
referred to and invoked in the adjudication of cases.”

The development of law by Istihasan, Istislah and Istidlal represents the

period of juristic equity in Muslim Law. The importance of justice, equity
and good conscience as a source of Muslim Law can be well assessed by
the following observation of Ameer Ali; he says that “when the great
expounders of Musalman Law have enunciated divergent doctrines or
expressed different opinions, the Judge administering Musalman Law is to
adopt the one most conformable to equity and the requirements of the
times.”

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BIBLIOGRAPHY
1. J. Duncan M. Derrett, "Justice, Equity and Good Conscience,"
Changing Law in Developing Countries, edited by J. N. D.
Anderson, Studies on Modern Asia and Africa, 2 (London: George
Allen &Unwin, 1963), 128.
2. The Holy Quran
3. Rosen, Lawrence. "Justice". The Oxford Encyclopedia of the Islamic
World. Oxford Islamic Studies Online.
4. Farid, Esack. "Qur'an". Encyclopedia of Islam and the Muslim
World. Macmillan Reference.
5. Smith, Jane. "Afterlife". The Oxford Encyclopedia of the Islamic
World. Oxford Islamic Studies Online.
6. Singh, N. K.; Arwan, A. R. (2000). Encyclopedia of the Holy
Qur'an. Global Vision Publishing House. p. 432.
7. C. M. Abraham, Environmental Jurisprudence in India
8. Available at www.worldslastchance.com/christian-growth/a-good-
conscience.html, accessed on 9th November 2018
9. Aqil Ahmad, “Mohammedan Law”, revised by Prof. Iqbal Ali Khan.
Central Law Agency.

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