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Articles
[J959] J.A.L.
considered to be valid " , 3 and maintained that, even if this were so, " that would not be such fresh light as would justify the Board in reversing its previous decision " . In addition, they committed themselves to the unfortunate opinion that there was no difference between the Hanafi and Shafi'i law in regard to waqfs—not surprisingly, perhaps, in view of the fact that the relevant differences were not adequately brought to their Lordships' attention—and continued: " On the contrary, it has not been suggested that, apart from the differences existing among the Shafi, Hanafi and other sects . . . Mohamedan law is not the same in East Africa as in India. The appellants have themselves relied on its universality and invoke the text of the Koran and the writings of learned commentators who expounded the law not of East Africa or any part of it but of the whole Muslim world." But this statement of fact emphasises in the strongest terms the universality of the Islamic law of the schools and the classical texts, a law solidly contrary to the decision which their Lordships ultimately reached; it makes no reference whatever to any differences of application contrary to those texts or, in particular, to the fact that the law now applied among Muslims in India and Pakistan is customarily (and appropriately) referred to as " Anglo-Muhammadan law " , precisely in order to emphasise the vital influence which English legal concepts and English rules of evidence and procedure—to say nothing of misinterpretations of the ancient texts—have exercised over its development. This fact had been aptly expressed by HAMILTON, J., in an early Kenya case1 (on which their Lordships commented unfavourably) when he remarked that the law of waqf " as originally understood by the Commentators and Mahomedan jurists has in India since the commencement of the latter half of the last century been profoundly modified by the decisions of the Privy Council. A study of the question shows that while the Mahomedan law, uninfluenced from outside sources, permitted perpetuities and the erection of wakfs for family aggrandizement solely, the influence of English Judges and of the Privy Council has gradually encroached on this position". Just so: but the law so developed, however reasonable and beneficial it may be, can scarcely lay any claim to " universality " ; and it seems unnecessary, as well as unfortunate, that it should be held applicable in the Protectorate of Kenya,2 where it is not only contrary to the classical Shafi'i doctrine which prevails, except among the Ibadis, throughout the dominions of the Sultan of Zanzibar, but also to local custom and practice.3 The result was that yet again legislation had to be introduced in order to undo the harm which had been done by the courts. This time, moreover, a genuine attempt seems to have been made, in 1 2
Talibu bin Mwijaka v. Executors ofSiwa Haji, 2 E.A.L.R. 33. Which is, of course, regarded juridically as part of the dominions of the Sultan of Zanzibar, although administered in practice as part of the Colony of Kenya. s For a more detailed discussion and criticism of this judgment, see my Islamic Law in Africa (London, 1954), pp. 340-2.