Saturday, February 12, 2011

LAW Institute Profiles


You can't get into top law school
The statement may look offensive, but if you are half-prepared for the law school exams, the statement may only be too true. The problem, with most of the students aspiring for top law schools, is the same. April arrives and the exam that appeared a cake walk all these months appears to be a real uphill task.
So, if you are a career conscious law aspirant, who realizes the value of a seat in NLSUI Bangalore, NUJS Kolkata or NALSAR, Hyderabad or likes, WAKE UP!
Here are a few tips to make your journey smoother.
  1. Decide in favour of or against law- WHOLE-HEARTEDLY.
Don’t be half-hearted in your approach. Spend a little time, with your elders, explore the opportunities. Try to know the avenues available and the struggle it takes to succeed in this field. Then, if you feel that you are the future lawyer, get into the preparation mode. If not, forget it.
  1. Aim HIGH.
If you decide in favour of law, aim high. Prepare for top law institutes. Don’t nurture the notion that a degree in law from anywhere is just the same. It is like equating Cadbury with Spuna (have u heard of it? NO!!. Don’t worry.. Neither have I)
  1. Know the test patterns
Unfortunately, there is no common examination for law entrance (like we have CAT for MBA). The test patterns for the tests differ and so should the preparation. Though the areas covered in all the tests are the same (Verbal Ability, Quantitative aptitude, General Awareness and Legal Aptitude), the focus and style vary. E.g. NALSAR would generally ask you to write an essay, while symbiosis may keep it only multiple choice questions (MCQs). Similarly, While NLSUI may test your understanding of basic laws like CONTRACT and Crime in their legal aptitude section, Panjab University may focus on your basic knowledge about the Constitution.
  1. Develop a legal eye:
Take interest in the related events. In some of the exams, like NALSAR, you may get an essay topic from the current legal events. Read reports on important judgments of Supreme Court reported in the news papers. Try to analyze from your perspective and make an effort to understand the rationale behind the orders. Particularly, if you lay your hands on any case in which the Supreme Court has reversed the judgment of High Court, get deep into it and see the approach adopted by two courts.
  1. Meet like-minded people
If you have some people around with a law background, try to spend some time with them, requesting them to familiarize you with the common legal terminology. E.g. ask them to explain to you the difference between accused and convict or may be between bail and parole. This would not only help you get over the initial resistance of the confusing legal language, but will also help you comprehend the legal news better and form your own opinion in somewhat legal parlance.
  1. Preparation is not optional pastime:
Having decided that you want to land in an elite law school, you can not afford to treat the preparation as an optional pastime. The preparation has to be regular and serious. You cannot allow the preparation to pass through the fortnightly cycles of on and off. Preparation for a tough exam needs to be tougher and law is no exception.
So, get serious and get going.
Objection, my lord!
Ever wondered why this community of black-wearers never objected to their image. The image that these people can turn grey into white or black, depending on which side they are fighting for. Fortunately, their job is much more. They have made a difference to lives of all of us. For example, ensuring that the innocent is not punished, because he doesn’t know the nitty-gritty of law is not an easy job. Maintaining cool, when the arguments get hot is not an enviable task. The profession has now started demanding its due and is getting the recognition of a wonderful career.

Suits SuitGiant offers mens suits, dress shirts, ties, Wedding Suits, tuxedos, accessories and more.




Share |

Lawlessness in Career choice


It may be a hazardous endeavour to choose a career, without knowing all the options.Every career is a good career. But not for every one. The choice of a career has a lot to do with the individual aptitude and preference. Everyone is different. Unfortunately, career choice is almost irreversible. So, Let’s not try to fit right key into the wrong lock and then curse the key or the lock or both.
Law is an option, the career conscious +2 students must consider. With encouraging news of NALSAR law graduates getting a salary of Rs. 9 lacs, the myths about law not for the toppers stand shattered. The law aspirants , therefore, can expect handsome packages in future, matching, if not better than those of their friends in reputed medical, engineering or management institutes.
Not long back, people had a misplaced perception about the law and lawyers. It was considered to be the last and always available choice. Thanks to the efforts put in by the prestigious institutes , including National law schools, the image has undergone a sea change, to the extent that law is now considered to be the career  of the future.
While choosing a career, it is also necessary to follow your heart and not head only. If being argumentative is what for which you have been scolded always by teachers and parents, law may be a career to reward you for that. If being analytical is your strength and you have an eye for the crux of the matter, LAW is for you.If you fancy yourself making statements, which may affect the life of millions, LAW is calling.
Let the sights of struggling lawyers , carrying the bulky files in the corridors of the courts and toiling hard , and failing, to convince the judge discourage you. Through these corridors only had some of the greatest lawyers , like Motilal Nehru,M.C.Chagla,Nani Palakhiwala, walked to the glories . And it is unimaginable to quantify their contribution.
 E.g. just visualize the efforts made by Nani Palakhiwala in the celebrated case of Keshavananda Bharati v State of Kerala to argue before the 13 learned judges of Highest Court of this Country. The longest judgment in the history of Independent India that put restraint on the power of the parliament itself to amend our constitution, probably would have not been possible, without painstaking efforts of Nani Palakhiwala . The entire nation felt grateful to this legal luminary and would always be so.
So, if you aspire to fill the colours in the canvas of your career, be ready to wear black. Add Law to your career choices and then be ready to contribute in reducing lawlessness in society.


Share |

Three Important Facts about Maintenance and Cure Law

Under maintenance and cure law there are three important facts that many injured seamen do not realize. First, maintenance and cure ends when you reach maximum cure. This does not mean that you have fully recovered from your injury. It simply means that your treating physician has stated that he does not believe that your condition will get any better. We have many clients who have suffered permanently disabling injuries who are released from their treating physicians as having reached maximum cure. Even though these individuals are still disabled and cannot return to full duty work, their right to maintenance and cure ends when the doctor releases them from his treatment.

Additionally, many injured seamen do not realize that maintenance and cure law provides for punitive damages if their employer unreasonably and intentionally refuses to pay proper maintenance and/or cure. It is important that strong written letters are sent to your employer if your employer is refusing to authorize necessary medical treatment or refusing to pay proper maintenance for your monthly living expenses. In order to pursue a claim for punitive damages in court it is important to have proper documented evidence that your employer unreasonably refused to pay maintenance and cure. This is typically done through written communications to your employer building a written record that can later be used in court.




Finally, many injured seaman do not realize that maintenance and cure is actually a separate claim from their rights under the Jones Act. Maintenance and cure applies to any injury or illness occurring in the service of the vessel. This actually includes land-based injuries or illnesses as long as the injured seaman was "in the service" of the vessel at the time of the injury. It does not make any difference as to whether your company is at fault or not in causing your injury or illness. You are entitled to maintenance and cure if you simply prove that you had an injury or illness while in the service of the vessel. In addition to such rights, if you are a seaman you can also pursue a negligence claim under the Jones Act against your employer. This is an entirely separate claim arising under a federal statute and you can collect pain and suffering, lost wages and additional medical expenses under the Jones Act.

Maintenance and cure law comes from general maritime law and it is meant to protect an injured seaman. Maintenance and cure law states that all doubts and ambiguities are to be resolved in favor of the injured seaman. It is important that you understand how maintenance and cure laws protect you if you are an injured seaman.

ABOUT THE AUTHOR: Timothy Young
Timothy Young and the maritime lawyers of The Young Firm have been fighting for injured maritime workers for years. Contact them if you have any questions at all about your rights under maritime law or the Jones Act.
Share |

Revision of the Czech Republic Civil Code


The current Civil Code was adopted in 1964. Notwithstanding the amendments made in 1991 to align it with democratic principles, most of its wording remains rooted in the circumstances of the 1960s and the communist system under which Czechoslovakia was governed. The current body of civil law in the Czech Republic comprises a number of laws, such as the Family Act and the Commercial Code. After the fall of the communist regime there was an immediate need for substantial changes to the law, but due to the constraints of time and circumstances these were undertaken on a piecemeal and largely uncoordinated basis. As a result, it is generally agreed that the current Civil Code is not fit for purpose and requires a complete recodification. Work on the recodification project began at the beginning of the twenty-first century. There has been an extensive consultation period, which ended on 25 January this year.

According to the authors of the recodification, the ideological starting point was the governmental proposal of the Civil Code of Czechoslovakia dated 1937, which was not adopted due to the events following the Munich Agreement. The reason for that is that this governmental proposal tried to modernize the Civil Code of Austria (Allgemeines bürgerliches Gesetzbuch für die gesammten Deutschen Erbländer der Österreichischen Monarchie) dated 1811 in confrontation with newer European civil codexes, namely the German and Swiss. The new proposed Civil Code also reflects the modern legal regime of neighbouring countries including Germany, Switzerland, Austria, Italy and the Netherlands.

The authors of the recodification also wanted to break with the ideological world of socialist law. 

The proposed new Civil Code includes almost 3000 Articles. It adopts a number of regulations which are currently included in different laws and proposes to repeal the laws concerned. Many modifications are proposed to the laws which are being adopted, in order to align them with present-day circumstances and requirements. Another objective of the recodification is to modify or specify rules in areas which are currently inadequately regulated by current private law.

Assuming that it is adopted by the Czech Parliament in its current form, the new Civil Code will also regulate areas connected with business relations, which have hitherto been dealt with separately, in the Commercial Code. 

The main conceptual change in the proposal of the Civil Code in comparison with the current legal status quo is the unification of regulation of individual contractual types into one legal regulation. This will abolish the current unsubstantiated duality of the regulation of contractual civil law and commercial law, where there are some unnecessary overlaps. This affects not only the regulation of individual types of contracts such as purchase agreements and employment agreements, but also regulations of general law on obligations such as the regulation of default, liability or time bar, where there are differences between the civil law and commercial law.

The new Civil Code puts greater emphasis than its predecessor on the autonomy of the will of parties to contracts. In some cases it abolishes unnecessary formal requirements imposed by the current law, such as, for instance, a requirement for contracts to be in writing. The proposed new Civil Code also includes means to redress the imbalance of power between parties to contracts, for example by regulating consumer contract.

Assuming it is adopted in its present form the new Civil Code will revolutionise Czech private law, and it has already been vigorously debated, not only by lawyers but also by the general public. One feature which has come in for criticism is the use of language, as it brings back some legal terms which were last used in the first half of the twentieth century.

The Code itself is supplemented by two other laws, the Act on International Private Law, which regulates relations with a foreign element, and the Act on Business Corporations. As the draft legislation is now entering the formal legislative process, it could become effective around 2014.

ABOUT THE AUTHOR: Dr Olga Slehoferova
Dr Slehoferova was born in Prague, Czech Republic. She graduated in law from Charles University, Prague in 1984 and obtained her Doctorate in Law in 1985. She was admitted to the Cyprus Bar in 1995. Her main areas of practice are company and commercial law. She speaks Czech, English and Greek.
Share |

How to go ahead with the legal reforms in India and the connected issues?


Whenever one talks about the judicial reforms, the corruption, the technicalities, costs and the unreasonable delay in courts, there are people and professionals saying that the situation is getting exaggerated. There is a total confusion about the judicial or legal reforms and the issue is often shown as complicated. It is true that bringing reforms in our ‘justice delivery mechanism’ is a complicated exercise and it is recognized in the year 1958 itself in the 14th Law Commission Report. Public very often criticize the judiciary and even noted lawyers in this country criticize the ‘justice delivery mechanism’ in this country and they emphasize at the importance of bringing reforms in the system. The problem is that we are not looking at the whole system, need of bringing comprehensive reforms and the need of separating issues which can be addressed in short time and the issues which are really complicated. This is where the confusion and complication lies. It is very simple to show the numbers and say that we do not have adequate number of courts and judges suiting to the pendency of cases and growing litigation. It is very easy to say that the police take lot of time to investigate a criminal case and there is unreasonably delay in filing the ‘charge sheet’ in many cases. It is also easy to say that the government is the big litigant before courts and the government should initiate appropriate reforms in their legal departments and when it comes to appointment of professionals to defend them. What we are actually doing is confusing the entire thing and laying so much emphasis on complicated issues; and in the course the actual issues will never be addressed.
We are maintaining 8-9% GDP growth and India aims at becoming super in the world. If we can not address simple issues in this country, I don’t know as to how we can aspire to become super power in the world. I don’t know about the role of the people’s representatives in this country who is supposed to raise their voice in Assembly and Parliament on behalf of the people and who is supposed to focus on the problems in this society. Really unfortunate! The emphasis on “Alternative Dispute Resolution Mechanism” is not the solution for reducing the delay in courts though we need to encourage “ADR” like Arbitration. The problem is that we don’t know as to who is responsible for the whole mess. I can, for sure say that even if we concentrate on initiating reforms aiming reducing the delay in courts etc., on war footing, it will take so many years to correct this system. This is the result of lethargic attitude of the people, educated people, enlightened people and the people’s representatives. If an accused is confident of getting bail for price even in a severe case under section 302 of I.P.C, how can we reduce the crime rate in this society? If a citizen is afraid to approach a Civil Courts claiming their right due to the costs involved, the delay, the corruption and the technicalities; there are people with muscle power who offer their service. In my opinion, we have allowed the system to go wrong so deeply and it will not be an easy thing now to turn the clock back. If we allow this situation to continue and if we don’t focus on our “Justice Delivery Mechanism”, then, there is no meaning for democracy, the fundamental rights and might becomes right. Infact, might has already become a right now. We have excellent educational institutions now, our brilliance is recognized all over the world, we have a democratic system, we have constitution, we have fundamental rights and we have seen judicial activism, we have people’s representatives, but, despite all this, we can not address the issue of delay in courts.
When we think about the legal reforms to be initiated aimed at providing speedy and cost effective ‘justice delivery mechanism’, the important thing to do is to list-out the issues and give priority. There are certain issues which can be addressed very easily and speedy. There are certain issues which takes longer time. And, there are certain issues which are complicated and require constant concentration. Let us first look at the easiest things to do and those are, in my opinion, as follows:
1. The Government should look at reforming our procedural laws and if the Government can concentrate on “ADR” and constituting special tribunals, then, I don’t see as to why the Government can not think about reforming our procedural laws. This is very important step and can be done very easily now. There were agitations in the past when the Government has mooted reforms in C.P.C and just because we had to see some agitations in the past, it is not correct to neglect the important issue all together. If the professional community is worried at reforming our procedural laws, I don’t understand as to why they did not protest to encouraging “ADR” or constituting special tribunals. All protests to be ignored and dealtwith in this regard. According to me, this is vital issue which can be addressed easily and which will produce good results.
2. The Union Law Ministry can take an initiative and moot the dialogue with the High Courts and Supreme Court emphasizing at the effective supervision of lower courts. A committee of eminent and committed High Courts judges should take the responsibility of supervising the functioning of the lower judiciary in the state constantly. It should really be effective. The supervising authority should take all the assistance from the law students, the departments and experts and so that they can constantly work as to how to make the system so transparent and if need be, they will make recommendations for the state government and also the central government for providing additional facilities etc. This should be done with greater co-operation and co-ordination between the judiciary and the government. The judiciary can very often say that lack of sufficient courts and the judges is the cause for delay. Instead, they should look at as to how to make the available mechanism work. The committee can also take the representations from the litigants and also from the professionals about the functioning of the judges and they can look into their functioning and advice their brother judges even if the same is not public. There is a need to follow the tradition in courts and if there is a Supreme Court judgment on a particular point, then, the same is to be respected. Likewise, the supervising committee can constantly look into various important issues pertaining to the administration of justice in a particular state.
3. The issue of appointment of judges to the High Court requires special consideration and the Government is now mooting for “Judicial Standards and Accountability” and these steps are to be pursued under any circumstances. It is no more a perceived fight between judiciary and executive and it is about the people and it is about the respect of the judiciary. I don’t personally feel that the proposed “Judicial Standards and Accountability Law” will produce instant results and it is to be seen as to how the committee functions and the its effect. But, it’s a good beginning and the issue of appointments and accountability in judiciary to be constantly concentrated. This is really a serious issue. The Government should not be allowed to say that they can not look into the judiciary and the judiciary should not say that the executive can not look into their function. The system is for the people and not for the few judges and few politicians. We know that there is lot of corruption in government, but, that can not be an excuse to the corruption or alleged corruption in judiciary. If we need to reduce the corruption in Government, then, the Judiciary should really be clean. In fact, it is very difficult to concentrate on the impartial functioning of the High Court judges though it is a fact that we have excellent judges and we have judges with great commitment even today. The Hon’ble Apex Court has recently referred about “Uncle Judge Syndrome”. This is an issue which can not be addressed easily and it’s a serious issue.
4. The issue of corruption in lower judiciary requires a special emphasis. In my opinion, there should be a ‘special anti-corruption cell’ at the national under the control of Central Government and the cell should have branches in each state focusing only on corruption in lower courts, the tribunals and other judicial and quasi-judicial authorities. Though, transparency can bring down the rate of corruption in lower judiciary, due to various complications, a special anti-corruption cell to be formed to deal with the corruption in lower courts and other quasi-judicial authorities in the state.
According to me, irrespective of the Governments in power, the above issues can be looked into and can be initiated on urgent basis. We should not just do an eye-wash exercise and should not tell the people that the steps are being taken to reduce the pendency in courts and to reduce the delay. We require constructive measures which can produce some results. In fact, we may not even require large funds to bring some reforms in the system. What we require is the planning and commitment to address issue and it is the responsibility of all the representatives of the people to look at this and this initiative should go forward. What we require is the meticulous planning and coordinated efforts.
Now, if we look at other issues or complicated issues which will take considerable time, few of those are, according to me, are as follows:
1. The legal education requires to be concentrated. Excepting the National Law Schools and few other colleges with good management or good people at the top, many law colleges in this country are not doing well or many law colleges are not producing the qualified law graduates. We can not completely blame the law colleges and we need to look at all issues concerning legal education and effective steps then be taken in this regard. What happens is that the law graduates without having required knowledge and standards are forced to stay in profession and practice in various courts whereas the talented are taking the opportunities in big companies or law firms. When we allow the law graduates without the required standards and knowledge to practice in courts, then, will find the ways as to how they can satisfy their clients though they lack the required ability and knowledge to convince the courts through exposing the legal position and exposing the facts before the court on behalf of their client. If we observe the practice in lower courts especially, this issue will be clearly evident and we can not deny the facts. This is a serious issue really and even if we concentrate on the legal education with meticulous planning from now, it will definitely take some time to restore the standards in profession.
2. When we talk about the disposal of cases by Magistrate Courts, then, we often listen about the role of the police or investigating authorities. When we talk about the role of the Government or Government Departments or their counsel in a case before the High Court especially where the Government is a litigant, we point-out the negligent attitude of the officers concerned. This is a larger issue and it is directly connected to the political reforms and cleaning politics itself. When we see good, clean and committed politicians, then, we will be able to see good administration in the state. As such, though this issue requires to be concentrated, we may not be probably able to address this in a short span of time and it will take considerable time infact.
I have just pointed-out few issues only. I have seen some text of “National Litigation Policy” now, I am really shocked and surprised at the issues highlighted and recommended. The Government should do a committed exercise and should bring the reforms which can produce some tangible results and we don’t need eye-wash recommendations and steps. We have got “Right to Information Act” and it has produced and producing good results and all appreciate such a move. The Government is proposing to bring a law for the protection of “Whistle Blowers” and the same is appreciated. The Government now is bringing a law aimed at maintaining standards and ensuring accountability on the part of the High Court judges etc., despite the complications and the move is appreciated. In those lines, it would be great to see concrete and constructive reforms aimed at reducing delay and corruption in courts. The Government and the people occupying position at various levels should consider one-thing that it is about the people and not about the few people occupying positions. People will not buy the issues like “fight between judiciary and executive” and no one should think that they are ultimate authority and they can do anything and say anything. One should understand that it is not about the people who ask for reforms and if a person can raise his voice asking for reforms, he must definitely know as to how to survive and come-up in the society. It is about the people and I strongly feel that we can reform this system and providing speedy justice can definitely be achieved. If few Supreme Court and known advocates wants to meet our Prime Minister asking for concrete legal reforms, I hope that our Prime Minister will take the issue forward. But, the problem is that the privileged are not raising issues as required and they are very busy with their business. Even the media can take up this issue forward and conduct discussions with able people and something productive can emerge out of those discussions. Media could focus on “Ruchika’s” case and many other cases, but, did not bother to concentrate as to where the problem lies. It seems they are also focused on ratings and providing breaking and sensational news with a view point or with their own internal policy, but, not concerned at the issues concerning the people.
I am beyond doubt that, we the people, has collectively failed to bring the proper “justice delivery mechanism” and we have allowed the system to go terribly wrong. Now, it will not be easy to turn the clock back. I hope that the steps will be taken to correct our system and it is for the people to pressurize the government and people occupying various positions in this regard.
Note: the views expressed are my personal and with all respect to the great judges and institution. I have no intention whatsoever to insult anyone.
Share |

The Role of Customs in Islamic Law

Custom is that which is established in a woman’s mind by virtue of logic and the sound mind accepts it. Customs are also practices which are being practiced by the society from time immemorial and it is accepted within the norms of the society. Customs might be different for not only different religions, but for different communities, areas, generations, and even for different families. There are also some specified requisites of a certain customs, and they were different for different communities, religions. For example, the requisites for a custom to be valid in U.K are very much different from that of India. Other than these there are also some ground or criteria on which a custom can be abrogated, for example a family custom is capable of being destroyed by disuse. 

The sayings of the Prophet were the main source of law in Islam which is mainly written in Quran and also in the form of the Ahadis. There is no doubt that the Pre-Islamic customs formed the basis of Islam Law. The Prophet accepted some of the prevalent customs but in some cases he denounced some, in which he introduced new laws which were either written in the Quran as the decision of God or it were mentioned in the Ahadis- the sayings of the Prophet. After the death of the Prophet, his companions denounced some customs which were not in accordance with the teachings of Islam.

However, traditionally the Muslim jurists do not give customs very much importance giving preference to their laws in an orthodox manner. But as time passed on the view changed, (in India) which came however due to some of the decisions given by the courts of India. In other areas however customs are still given a limited preference.

Sources of Islamic Law
The Islam law has many different types of sources. The Quran is the primary source and its decision is the final in all cases. But the sources are strictly hierarchical. 

The Quran represents the Will of God communicated through the prophet, by the angel Gabriel from the original text reserved in seventh heaven. The Quran as it exists in its present form was revised in the time of Usman 13 A.H.The Quran does not specifically deal with any particular subject as such. Many parts of it deal with theological and moral reflections with special emphasis to unity of God and also condemnation of idolatry. The Quran is therefore not any definite Code, but in all matters it deals with it is the primary and final authority. There is not much difference in case of interpretation of Quran between Shias and Sunnis. The Sunni mainly are confined to traditional interpretation, but the Shias also resort to allegorical interpretation.

The Ahadis and Sunna are next to The Quran in matters of importance in Islamic Law.

Collection of Ahadis:
The Ahadis were at various times subject to forgery by different persons, sometimes for personal purposes or sometimes for political. Nevertheless are many authentic sources of the Ahadis. Some of the authoritative collections are as follows: Muwatta of Mallik Ibn Abbas; Musnad of Hanbal; Sahi Bukhari; Sahi Muslim.There are also other collections of Ahadis but the above mentioned four are the most important ones. 

Among the Shias there are some books namely “Tahzib-ul-Akham’ by Abu Jafar and there are a collection of four books which are collectively called Kutab-i-arbaa. The later is of greater importance in India.

Sunna:
Sunnas are also considered a second source of law along with the Ahadis. The approval or disapproval was seen from his conduct. The conduct therefore was considered as an important and binding authority on the commoners. Here there is a special reference to ‘companions’. They were persons who had frequent with the Prophet. So when the Prophet’s conduct or practices were not available people used to study the customs and practices of the ‘companions’.

The third source is the Ijmaas, which refer ideally to consensus of the opinions of the first four Caliphs or the Mutjahids or the jurists. As time passed on there arose numerous problems which could not be solved with the help of The Quran or The Hadis, hence the jurists developed a new method of solving problems i.e. general consensus among the jurists of a particular age. This is basically meant by Ijmaa.
The Sunnis regard the ijmaa as of great importance, but as the first three Caliphs were rejected by the Shias they do not give much importance to the Ijmaas.

The Muslim jurists could not however solve several issues by the Ijma, hence they resorted to a new method of resolving conflicts i.e. the use of reason to give their own discretionary judgment, provided they were in accordance to Quran or the dictates of the Prophet. A tradition in the Miskat shows that The Prophet himself recognized private judgement. The law was mainly deduced from three sources: Quran, Ahadis and Ijmaa. So naturally Qiyas were ranked below all the mentioned three sources. The recognition of the Qiyas was the introduction of reason to the domain of Islamic jurisprudence. These are similar to the Jewish methods of Halakhic Exegesis and Hermeneutics. The Shias provide secondary importance to Qiyas but the Sunnis have a greater scope for the use of the Qiyas.

Custom as a Source of Law
Custom is that which is established in a woman’s mind by virtue of logic and the sound mind accepts it. .In Islamic Law however customs (adat) are not a recognized source of law although it an important source of law. But nevertheless some jurists such as The Hanafis, The Malikis referred to customs as a source of law and they have even taken steps towards recognizing customs. Even the Prophet recognized the force of customary law. His companions however denied some customs on the ground that they were not according to the ideals of Islamic Faith. However customs are now regarded as a legitimate source of law, but they are considered inferior in position hierarchally after QURAN, HADITS, IJMA, but however it was superior to Qiyas. There were also a few requisites for validity of a custom, failing which the practice wasn’t considered a valid custom. .

Inheritance
The customs regarding inheritance were much varied in various areas, not only within areas but also within tribes, families, communities etc. Even there were cases of some Muslim families following customs of different religions and similar cases [which is later dealt in the chapter].

There was a custom in Colonial Nigeria that if a next-door neighbor died, the neighbor had pre-emption it, if heirs decided to sell it. Here the heirs decided to sell the property to the neighbor but she refused on price terms and then it was sold to another person. Now the earlier person sued on the basis of shufa( right to pre-emption). The judge here gave a decision which although recognized the custom, but it couldn’t be applied here as the appellant was first offered and when she rejected, it was offered to someone else.

Now coming to the pre-Islamic era the customs were: property could be only inherited through patrilineal basis. Also in Nomadic societies customs inheritance was “patronage belongs to the eldest”. There was no question of women being considered as a recipient of property. But as we know the Quran does not allow inheritance of property through only to men. According to Quran property also must given to women. There is a lot of science for the division of property. It emphasized the bonding between husband, wife, and children. Thus the customs are followed, but it has been modified accordingly with an objective to raise the status of the women and also to strengthen bonds between relatives as it also included such relatives which the customary law would have excluded .

In general I have seen that the Islamic customs of inheritance which gave preference to males for inheriting property has dissipated a lot from its origin. Starting from the Quran to the 19th century Europe the Islamic customs of family endowments were viewed as an obstacle to social progress. The customs were thus such changed that it included the deprived ones such as -wife, girl child etc. Thus the customs did not have much role in social development, but the Islamic laws were developed such that deviated from the original orthodox customs and made space for socio-economic development.

Such a situation was seen in India also when the case of Jammya v Diwan arose. In this case the family custom was that excluded women from inheriting property. The judges decided that such a custom was against the development of socio-economic security and status of the women.

But in some cases in some places customs were given preference over law, as they were, without modifying as in the case of Abdul Hussein v Bibi Sona Dero. In this the plaintiff claimed a property on the basis of the custom that in their family women were denied from inheritance if married, the judges were convinced that the custom prevalent and gave the judgment which preferred custom to the Islam law of inheritance. But here they gave so in because the custom proved to be prevalent in the family for a long time.

In another case regarding family customs, similar to the above mentioned case, customs were given preference to the law. It was in the case of Parandhamayya v Navaratna Sikhmani.There was a custom in the Kamma community of Andra Pradesh in India illatom . In this type of custom the son-in-law was allowed a share of property and was affiliated in a family. It was held by the court that the custom was well established in the community as it was being practiced for 40 years and thus would be preferred to the Islamic laws of inheritance.

Marriage
Marriage customs were different in various different areas and they were quite prevalent during the ancient times. They might differ even from village to village, according to the circumstances some ceremonies might be shortened or some events might be more emphasized. The customs however in this case have greatly influenced the religious law (hukum).

The Muslim Marriage comprises of two parts: Nikah (the marriage contract) and the other are the marriage ceremonies ( adat or customs). The ceremonies are generally performed after the nikah. In the Nikah the offer is made by the wife’s wali and is accepted by the groom. The sadaaq or the mehr is offered by the groom to the wife’s wali. This is one of the important features in Islamic marriages. They have been known to be in practice from the pre-historic times in places like Egypt, Rome etc. the documentary evidence of the Greek papyri from Byzantine Egypt attests to the growing importance of gifts coming from the groom. Sometimes in marriages there were also transfer of property in the bride’s name. The saddaq was divided into a advance and deferred part. This deferred part would be paid generally during divorce or death of husband to guarantee their economic security. . Wives also could use the deferred saddaq as a deterrent against a variety of unilateral actions by their husbands, such as uni-lateral divorce or the taking of multiple wives. As a result, the mut'a, a compensation gift paid to divorcees by their ex-husbands, became obsolete. The mut'a seems to have been an obligatory alimony payment during the first century of Islamic rule, but was later supplanted by the deferred portion of the saddaq.

Thus we see sadaaq had a very important role as they could be directly related to the status of women in the society and their control in the society. But this led to certain controversies because the Muslim jurists did not accept the deferred saddaq on the ground that its time was non-specified.And thus the legal contracts which were written from then on, the deferred part of the saddaq was always specified to be given within a specified time. Now this marriage contracts also had a depiction of the social status of the people. In Earlier Egypt there was a custom of writing contracts in different materials. Those who were rich they wrote them in leather or silk and the commoners did the same in papyrus or paper. Thus I see that customs which were prevalent were adapted and modified accordingly when they were circumscribed within the legal aspect.

There also a custom after the wedding ceremony, when the wife is pregnant, her mother sends a letter to the mother of the husband is first, informing her. Then the latter along with some women of her community go and visit the bride after sometime, with a gift known as seulimph, which mainly consists of cradle, jewellery and some money. This custom is still followed in Holland among the Archnese. This custom thus plays an important role in maintaining relations between the two families. The money paid to the bride is essentially from the mother, males have nothing to do with this. This implies that women have some economic independency and can earn money.

There is also another custom after the delivery of the child, the wife’s father invites many important persons to his house. There he formally separates the couple into a new household, specifying the amount whether in kind or cash, which he gives to the new household. This custom thus provides a for a support to the newly married couple to get a start with their life. It also evades troubles which a wife may have with her mother-in-law, as they live separately.

Thus I see that the courts were in favor of customs which were in according to general sense of law and equity, if such a condition was not fulfilled but the custom was to be taken into the legal aspect then it was modified.

Conclusion
After having done an extensive research on the customs and their role in Islamic Personal Law, I have come to conclusions that the role of different customs is different. Customs have been always given less priority by the Muslim jurists. However some criteria were given for a practice to be recognized as a custom, which were followed quite ardently.

Some customs have made it to becoming the law while others have been modified according to the changing circumstances. There are also some customs which affect the society and its structure. For example, the laws of inheritance have been such modified that they now include women – thus they work for the socio-economic upliftment of the women, but before when they were totally on patrilineal basis they totally deprived women of their due share. Similarly, is the case of sadaaq, the deferred part, which is paid after the death of the husband or at time of divorce also helps the wife maintain herself economically.

Also there are some customs which help in maintaining social relations correctly. Like as we have seen the case of seulimph, it helps in maintaining relations between the two families correctly. The separation of the newly married couple from the household also creates a sense of freedom for the couple; there are less chances of the wife having problems with her mother-in-law etc. 

Bibliography
Books Referred:-
Ali Ameer , II : 25
Ali, Hamid , Custom and law in Anglo-Muslim Jurisprudence at 33 and 34 (1938).
Encyclopedia Britannica, V 2, 898.
Islamic Law and Society, Vol. 7, No. 1, 1-36 at 31 (2000).
Lammens : 68.
Mitteis.L., Grundziige and Chrestomathie der Papyruskunde , Leipzig, vol. I, 225 at 226 (1912).
Morley’s Digest Introduction p. ccxxxvii.
Peters, Ruud and Reinhart, Kevin A., Law Custom and Statutes in the Muslim World p.19.
Rahim Abdur , Muhammadan Jurisprudence, p.55.
Sinnah Abu , Al-‘Urf wa’l Adah , p.23.
Verma, B.R., Commentaries on Muhammadan Law, p.8.
Wilson: Muhammadan Law pp 5.

Articles referred:-
# Jain, M.P., Jaipur Law Journal, Custom as a Source of Law, 97-130, at 104.
# Jayewardene, Chandra, Achehnese Marriage Customs Indonesia, Vol. 23 (Apr., 1977), pp. 157-173 at 171.
# Encyclopedia Britannica, V 2, 898.
# Wilson: Muhammadan Law pp 5.
# Supra note 4.
# B.R. Verma , Commentaries on Muhammadan Law, 8. Ahadis are mainly the cases which have been dealt and decided by the Prophet first hand and Sunnas are the practices of the Prophet. These were the main foundations of law for the first Caliphs who were the companions or relations to the Prophet.
# Supra note 4 at 7.
# Supra note 6, at 9. Among them the Sahi Bukhari and Sahi Muslim are of great importance and they are called Jamais. Also the above mentioned collections are considered among the Sunnis.
# Ameer Ali, II : 25, where “Sunna , i.e. traditions” is used. They were mainly the conduct and practice of the Prophet. Sometimes it is also referred to the pre-Arabic customs which were given the approval of the Prophet.
# Lammens : 68
# Hamid Ali , Custom and law in Anglo-Muslim Jurisprudence at 33 and 34 (1938).
# Morley’s Digest Introduction p. ccxxxvii
# See Abu Sinnah, Al-‘Urf wa’l Adah , 23
# Abdur Rahim, Muhammadan Jurisprudence 55, at 55, 136, 137 (1958). “First, it must be generally prevalent in the country; second, it must not be a merely local usage in a village or a town, though it need not be a ancient or immemorial; third, it must be an established course of conduct, not merely practiced by a few occasions; and, fourth, custom being essentially territorial, it cannot affect the law in other hands, as it is confined to a particular period and cannot affect the custom in another age
# Alhaji Ila Alkamawa v Alhaji Hassan Bello and Alhaji Malami Yar ,[1998] 6 SCNJ 127.
# Ruud Peters and Kevin A. Reinhart , Law Custom and Statutes in the Muslim World p.19. The Qur’an treats the topic of inheritance at great length and inconsiderable detail. Q. 4:8 establishes that both men and women have the right to inherit: “Men have a share in what parents and relatives leave behind at death and women have a share in what parents and relatives leave behind. Be it large or small, a legal share is fixed.”1 4:11–12 and 176, known as ‘the inheritance verses’, award specific fractional shares of the estate to a range of male and female heirs, i.e., one or more daughters, a mother, a father, one or more siblings, a husband, and one or more wives.
# Supra note 16, at 19-20. The science of the shares imposes compulsory rules for the division of a minimum of two thirds of any estate; bequests are limited to one third and may not be made in favor of one or more heirs without the consent of the others. Thus, a person contemplating death may not, in theory, designate one or more of his (or her) relatives as a testamentary heir nor may he transmit real assets in integral units to one or more heirs. Instead, the estate of the deceased is divided into fractional shares and distributed to those persons who qualify as heirs according to the science of the shares. Consider, for example, the case of a man who dies leaving a wife, daughter and son and whose estate is comprised of a house, plot of land and a mill. According to the science of the shares, the wife will inherit 1/8 of the house, plot of land, and mill, the daughter 7/24, and the son 7/12. Left unattended, the properties in question will become increasingly fragmented over time as the fractional shares become smaller and smaller.
Jammya v Diwan (1901) I.L.R 23 All. 20.
# Abdul Hussein v Bibi Sona Dero , (1917) 45 I.A. 10. “if the custom were in fact well established in one particular family, whether it were enjoyed or no by another family would not affect the question, since the custom might be independent in each case and the evidence would not establish that the custom failed by reason of the inability to define the exact limits within which it was to be found when once it was established that, within certain and definite limits, it undoubtedly existed.”
# Parandhamayya v Navaratna Sikhmani, A.I.R (1949) MAD 825.
# L. Mitteis, Grundziige und Chrestomathie der Papyruskunde , Leipzig, vol. I, 225 at 226 (1912).
# On the social meaning and definition of matrimonial gifts in general, see J. Goody and S.J. Tambiah, Bridewealth and Dowry (London: Cambridge University Press, 1973); J. L. Comaroff, The Meaning of Marriage Payments (London: Academic Press, 1980).
# Islamic Law and Society, Vol. 7, No. 1, 1-36 at 31 (2000).
# Supra note17, at 33
# See Y. Ragib, "Un contrat de mariage sur soie d'lgypte fatimide", Annales islamo-logiques, 16 (1980), 31-37; G. Levi della Vida, "A Marriage Contract on Parch-ment from Fatimid Egypt", Eretz Israel, L. A. Mayer Memorial Volume (1964), 64-69
# Chandra Jayawardena, Achehnese Marriage Customs Indonesia, Vol. 23 (Apr., 1977), pp. 157-173 at 171
# M.P. Jain, Jaipur Law Journal, Custom as a Source of Law, 97-130, at 104.
# See Abu Sinnah, Al-‘Urf wa’l Adah , 23
# Soorendranath v Heeramonee, (1868) 12 M.I.A. 81, at 91
Share |