Justice,

Equity &
Good November 11

Conscience
as the
Source of
2018
Islamic
Law
Submitted
By:
Mehwish
SUBMITTED TO – Dr. Ghulam Yazdani Khalil
B.A.LL.B(H)
3rd Semester
(S/F)
 TABLE OF CONTENT

Sr. No. TOPIC PAGE No.

1. Acknowledgement 2
2. Introduction 3
3. Background 4-5
4. Sources of Islamic 6
Law
5. Primary & Secondary 6-7
Sources
6. Justice, Equity & 8-9
Good Conscience
7. Conclusion 10
8. Bibliography 11

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 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Dr.

Ghulam Yazdani who gave me the golden opportunity to do
assignment on “Justice, Equity and Good Conscience as the Source
of Islamic Law” which also helped me in doing a lot of Research and I
came to know about so many new things, I am really thankful to him.
Secondly, I would also like to thank my parents and friends who helped
me a lot in finalizing this assignment within the limited time frame.
-MEHWISH KHALIL

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 JUSTICE, EQUITY AND GOOD CONSCIENCE AS A SOURCE
OF ISLAMIC LAW

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

Istihsan is used to override the Qiyas. In the words of Abdul Rahim: “It may happen that the law
analogically deduced fails to commend itself to the jurist, owing to its narrowness and
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 liberty to refuse to
adopt the law to which analogy points, and to accept instead a rule which in his opinion would
better advance the welfare of men and the interests of justice.” Thus, istihsan means equity or
juristic preference. Schacht says that istihsan came to signify a breach of strict analogy for reason
of public interest, convenience or similar consideration.

This is essentially a doctrine of the Hanafis, and other schools of Sunnis did not look at it kindly.
Masalihu Mursala as propounded by Malik allowed the jurists to deduce law on the basis of
general consideration of 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 law.

Another source of Muslim equity is read by Fyzee in the directions given to the Kazi to mitigate,
in certain circumstances, the rigorous of a legalistic interpretation of the law. It is obvious that
whatever directions were issued to the Kazi, or to whatever extent the doctrines of juristic
preference and public good might be stretched, they could not be utilized to override the text of
the Koran or the Sunna. They were, at best, used to override the Qiyas.

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BACKGROUND

The phrase “justice, equity, and good conscience” had its origins in Roman canonical law as it
was understood by English jurists of the sixteenth century. In the form in which it was
introduced into England at that time, it was “an appeal to sources of law other than English
common and statute law, namely, “an appeal to fundamental laws, recognized universally.”

The intent of its implementation was to free England from the papal authority during the
reformation of the Church of England. Then at the end of the seventeenth century, the formula
made its way across the oceans into the legal language in India where courts 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.

After nearly one hundred more years, the phrase was revived in 1781 by Governor General
Warren Hastings as he drew up regulations to guide the fledgling British judicial administration
in India. Section 60 of the Regulations stated, “That in all cases, within the jurisdiction of the
Mofussil Dewannee Adaulut, for which no specific Directions are hereby given, the respective
Judges thereof do act according to Justice, Equity and good Conscience,” and Section 93
repeated the rule for the Sudder Dewannee Adaulut as well. Those matters regarding which the
existing corpus of law was silent were then to be judged according to this provision.

But it was not only the laws promulgated by the East India Company that were to be
implemented; the laws of the Hindus and Muslims were also to be considered authoritative. The
Regulations drawn up by Governor General Hastings and his Council also stated that “in all suits
regarding Succession, Inheritance, Marriage and Cast, and other religious Usages, or Institutions,
the Laws of the Koran with respect to Mahomedans, and those of the Shaster with respect to
Gentoos, shall be invariably adhered to; and on all such Occasion the Moulavies or Pundits shall
respectively attend to expound the Law.”

Over the next number of decades, judges with the help of native Law Officers interpreted and
applied Muslim and Hindu law along with additional regulations as legislated by the British
Governor General and his Council. When the phrase, “justice, equity, and good conscience” was

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invoked to address areas not covered by the existing law, the judges would draw on a wide range
of sources including Roman Law, laws of European countries, English Law, and Natural Law.

In its modern version, the doctrine of equity, justice and good conscience is essentially a product
of the British administration of justice in India. Its earliest form is found in the Letters Patent of
George I of the year 1726 which enjoined upon the courts to give judgments “according to
justice and right”. Then, it came to mean the English notions of justice and right as understood
by English lawyers.

The Regulations of 1781 laid down that in cases, for which no specific directions had been laid
down; the Adalat was 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 the
application of rules of English law as modified to suit the Indian conditions and circumstances.

This 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 superimposed on the rules of Muslim law. By
this process, several rules of Muslim law were modified and brought at par with the changed
social conditions in India and with the English notions of equity and justice.

For instance, the Muslim law of pardanashin lady, of guardianship, of divorce, of wakf, etc. has
undergone considerable modifications. The interference in the law has been made avowedly in
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.

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SOURCES OF ISLAMIC LAW

A Muslim’s life ideally is ruled by Islamic religious law, the sharia. Literally, the word ‘sharia’
can be translated as ‘the path that leads to the spring’ (Ramadan 2004, p. 31). Figuratively, it
means ‘a clear path to be followed and observed’. Islamic religious law springs from various
sources. These are discussed in this chapter, along with the different ways in which the law is
interpreted. Separate attention is paid to the question of how Muslims living among a non-
Muslim majority should observe the sharia.

PRIMARY AND SECONDARY SOURCES

There are various sources of Islamic legal knowledge. The first one of course is the Quran itself,
which, Muslims believe, was revealed to the Prophet Muhammad, also called the Messenger of
God (Rasulullah), by the angel Jibril (Gabriel). The second one is the sunna, that is, the deeds,
utterances and tacit approvals of the Prophet, as related in the ahadith or traditions (the singular
hadith is also used for tradition in general), handed down through a dependable chain of
transmitters.1 Sometimes, the term sunna is used in a wider sense, including the deeds of
Muhammad’s Companions and successors. Note that this is not a critical study of the origins of
Islamic law. We try to understand the Muslim view of Islamic law. Eminent Islam scholars such
as Joseph Schacht (1902–69), following Ignaz Goldziher (1850–1921), argued that the sunna is
in reality the practice of the Umayyad rulers of Damascus, only supported by ahadith of dubious
authenticity. More recent scholarship, however, tends to concentrate on the authenticity of
individual ahadith, rejecting wholesale branding of the ahadith as forgeries. All this, however,
lies outside the purview of this book. The Quran and the Sunna are the primary sources. They are
thought to contain God’s infallible and immutable will, or sharia in a narrow sense. Of course
present-day Muslims, living some 15 centuries after the time of Muhammad, see themselves
confronted with problems on which the Quran and the Sunna are silent. The Hadith dwells at
great length on such subjects as ‘the sale of gold necklace studded with pearls’ (Muslim, book
10, chapter 38) and ‘the selling of the camel and stipulation of riding on it’ (Muslim, book 10,
chapter 42), but contains precious little on, say, corporate government, public utilities or
intellectual property, let alone complex financial products. Furthermore, the Quran and the sunna
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leave room for different interpretations. Muslims therefore often have to resort to secondary
sources of law. Sharia in a wide sense includes all Islamic legislation. In so far as this is based on
secondary sources; it is not necessarily valid for all times and all places.

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JUSTICE, EQUITY AND GOOD CONSCIENCE

The moral sense; the faculty of judging the moral qualities of actions, or of discriminating
between right and wrong; particularly applied to one’s perception and judgment of the moral
qualities of his own conduct, but in a wider sense, de CONSCIENCE 248 CONSENSUS
TOLLIT ERROREM noting a similar application of the standards of morality to the acts of
others. In law, especially the moral rule which retinites probity, justice, and honest dealing
between man and man, as when we say that a bargain is “against conscience” or
“unconscionable,” or that the price paid for property at a forced sale was so inadequate as to
“shock the conscience.” This is also the meaning of the term as applied to the jurisdiction and
principles of decision of courts of chancery, as in saving that such a court is a “court of
conscience,” that it precedes “according to conscience,” or that it has cognizance of “matters of
conscience.” There are suggestions in some of the decided cases that where Parliament has
clearly intended that a court or tribunal should act as a "court of conscience" rather than a court
of law, there can be no appeal from a decision of such a court or tribunal. This argument has then
been turned around to support the proposition that if Parliament has provided an avenue of
appeal, which it has with the Residential Tenancies Tribunal and the Strata Titles Board, this
must indicate some restriction on the extent to which the court or tribunal against which the
appeal lies may make use of the "equity and good conscience" provision. The case usually cited
in support of these arguments is Moses v. Parker [886] AC 245. In that case the court in question
(which was in fact constituted of the judges of the Supreme Court of Tasmania) was directed to
be guided by equity and good conscience only, and by the best evidence procurable, even if not
required or admissible in ordinary cases, and not to be bound by strict rules of law, equity or by
any legal forms. The question arose as to whether there was a right of appeal to the privy
Council. The Privy Council held that there could be no appeal, because the members of the Court
were expressly exonerated from all rules of law and equity and all legal forms. The decision
continued: "How then can the propriety of their decision be tested on appeal? What are the
canons by which this Board is to be guided in advising Her Majesty whether the Supreme Court
is right or wrong? It seems almost impossible that decisions can be varied except by reference to
some rule; whereas the Court making them is free from rules. If appeals were allowed, the
certain result would be to establish some system of rules; and that is the very thing from which

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the Tasmanian Legislature has decided to leave this court free and unfettered in each case. If it
were clear that appeals ought to be allowed, such difficulties would doubtless be met somehow.
But there are strong arguments to show that the matter is not an appealable nature". In Qantas
Airlines Limited v Gubbins, (1992) 28 NSWLR 26, the New South Wales Court of Appeal had
to consider s.108(1) (b) and s.118 of the Anti-Discrimination Act 1977. The former provision
provided that the Tribunal in question "shall act according to equity, good conscience and the
substantial merits of the case without regard to technicalities and legal forms". The latter
provision provided for an appeal to the Supreme Court on questions of law. Gleeson C.J. and
Handley J., in a joint judgement, described these provisions as "apparently conflicting". Their
Honours held that the conflict could be resolved only by holding that the "equity and good
conscience" provision did not release the Tribunal from the obligation to apply rules of law in
arriving at its decisions. Their Honours pointed out that in some cases, the words equity, good
conscience and the substantial merits of the case" may indicate that "the decision maker is free
from any obligation to apply rules of law so that any decision will be executive rather than
judicial and not subject to appeal even if that is otherwise available". In other contexts, those
words have been construed as requiring the Tribunal to apply the ordinary law. Their Honours
referred to the decision of Kinsella J. in Ex parta Herman re Mathieson [1961] NSWR 1139
which His Honour said "The words 'according to equity and good conscience'... as used in s.7 of
the Small Debts Recovery Act... do not give the court power to depart from established
principles of law nor do they give it power to dispense justice otherwise than according to law".
To the Judgements of Gleeson and Handley JJ should be added the judgement of Kirby P [the
critical elements of the judgement are reproduced]. "Two curiosities concerning the proceedings
before the Tribunal should be noted. The first is the way in which the proceedings were
conducted as if the answer to the claim of the respondent was to be determined in precisely the
same way as it would be solved in an equivalent suit in the Equity Division of the Supreme
Court.. In this way, the pleadings invited the tribunal to approach the matter on the footing that it
was resolving the pleas based upon the deed of release and the reply in exactly the same way as
such issues would be resolved in a court of law. The tribunal is not a court of law. It is a statutory
body created by s.69(b) of the Act. It comprises "judicial members" and other members as
appointed from time to time....

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CONCLUSION
Under the head of Justice, Equity and Good Conscience may be grouped those sources which
have their origin in the equity or absolute good.

MAHMASSANI says:

“Real Justice and equity are the basis of the Shariah, because it is a divine in origin and
comprises in its rule the fundamental principles of religion, morality, and economic transactions.
It was a natural, therefore, that these rules should overlap and be influenced by one another. It
was natural also that the sources, bases, sciences and studies of these rules should be integrated
in one whole”.

So, Justice, Equity and good conscience is basically the matter of ‘ultimate good’.

It is regarded as pervasive source of Islamic Law as it applies on the matters with the motive of
Justice and ‘ultimate good’.

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BIBLIOGRAPHY

BOOKS:-

 Muslim Law by Syed Khalid Rashid

 Islamic Law by Aqeel Ahmad

STATUTE:-

 The Shariat (Application) Act, 1937

WEBSITES

 www.indiankanoon.com
 www.academia.com
 www.scconline.com

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