Adoption of Change Under Islamic Law: Case Study of the Waqf of Shares and Securities

Abstract

The British Indian Courts are criticised for stultifying Islamic law by relying only on the translations of selected classical legal texts and operating under the doctrine of precedent. This paper challenges this view by arguing that the Anglo-Muhammadan law responded to social change by providing a venue for discourse to various strata of society. The judges, lawyers, legal commentators, ‘ulamā’ and politicians played an active role in the making and functioning of law despite holding divergent views. This paper focuses on the historical legal process by which shares and securities along with similar type of incorporeal/intangible property were adopted as the valid subject matter of waqf. Shares and securities were a new type of property under Islamic law. Therefore, the judges initially refused to accept them as the valid subject matter of waqf by relying upon the classical legal texts. However, Muslim legal commentators supported such waqf by arguing that Islamic law accomodates social change. This view prevailed in the end but the legal controvesy stretched over three quarters of a century. This study provides insights into the making of Anglo-Muhammadan law by identifying the role of various actors who played an active role in its formation and development.