DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY

PROJECT OF
FAMILY LAW- I
Submitted to

Submitted by

Mrs.Samreen Hussain
(Associate professor)
Lucknow

sec(A)

Avinash Maurya
Roll no.-35 RMLNLU,

Acknowledgement

First of all, I would like to thank Mrs. Samreen Hussain for giving me this
opportunity to make the project on such an immense topic and all the
support and guidance that I have received from her, without which this
project could not have turned into a reality. I would also like to thank all
my colleagues and seniors for providing me support and material facts
and figures related to this topic. Last but not the least, I would like to
thank my parents for providing me appropriate guidance and support to
prepare the project. All the above mentioned people have very whole
heartedly helped me to make this project in the present shape.
-Avinash Maurya

TABLE OF CONTENTS
Introduction
Primary sources
The Quran
The sunnah
Ijma
Qyias
Development of classical school of jurisprudence
The sunni schools
The shia schools
Conclusion

Introduction
Various sources of Islamic law are used by Islamic jurisprudence to elucidate the Sharia, the
body of Islamic law. The primary sources, accepted universally by all Muslims, are the
Qur'an and Sunnah. The Qur'an is the holy scripture of Islam, believed by Muslims to be the
direct and unaltered word of Allah. The Sunnah consists of the religious actions and
quotations of the Islamic Prophet Muhammad and narrated through his Companions and Shia
Imams. However, some schools of jurisprudence use different methods to judge the source's
level of authenticity.
As Islamic regulations stated in the primary sources do not explicitly deal with every
conceivable eventuality, jurisprudence must refer to resources and authentic documents to
find the correct course of action. According to Sunni schools of law, secondary sources of
Islamic law are consensus among Muslims jurists, analogical deduction, al-Ra'y; independent
reasoning, benefit for the Community and Custom. Hanafi school frequently relies on
analogical deduction and independent reasoning, and Maliki and Hanbali generally use the
Hadith instead. Shafi'i school uses Sunnah more than Hanafi and analogy more than two
others. Among Shia, Usuli school of Ja'fari jurisprudence uses four sources, which are Qur'an,
Sunnah, consensus and aql. They use ijma under special conditions and rely on aql (intellect)
to find general principles based on the Qur'an and Sunnah, and use usul al-fiqh as
methodology to interpret the Qur'an and Sunnah in different circumstances, and Akhbari
Jafaris rely more on Hadith and reject ijtihad. According to Momen, despite considerable
differences in the principles of jurisprudence between Shia and the four Sunni schools of law,
there are fewer differences in the practical application of jurisprudence to ritual observances
and social transactions
A sound knowledge and understanding of the sources and origins of Islamic law is essential
for the study of Islamic law. The first two sources, namely the Quran and the Sunna, are not
only the basic textual sources of Islamic law but are also the principal religious texts of Islam.
It is important to appreciate the divine origins of both the Quran and the Sunna in order to
understand why and how Islamic law has developed sophisticated methods of interpretation
and law-finding so as to arrive at concrete legal rules capable of solving real legal problems.
This chapter on sources is therefore not confined to an exposition of the textual sources of
Islamic law but is also concerned with an introduction to the different methods of lawfinding. You will see that especially on the latter there exist considerable differences between
the schools of Islamic law. Muslim law or Islamic law was one of the major important legal
systems of the medieval world. It had structured a new idea or new political, social and
cultural ideas. In India, the Islamic laws also played very significant role in structuring the
Indian administrative system, social, political and cultural. There are four sources of Muslim
law, they are: The Holy Quran, The Sunna, Ijma and Qyias1.
1 Dictionary of Islam, pp.400; 548.Shorter Encyclopedia of Islam, p,614 Muslim
Institution p.61; Islam by A.S. Triton, pp 62-63 Medieval Islam by Von Runebaum, ppl48-53
U.N. Day, The Government o f the Sultanate, Munshiram Manoharlal Publishers Pvt Ltd,
Delhi, First Published 1972, Second Edition 1993,p,l070.

Primary sources

The Quran
Islamic law is primarily a religious law. All the schools and sects of Islam accept that the two
main sources of the Sharia are the Quran and the Sunna. There are differences between the
Sunni schools and the Shia as to what constitutes the Sunna as the Shia accept traditions from
their own Imams as being of divine inspiration. The secondary sources of the Sharia are
Qiyas analogy and Ijma consensus. There is not, as will be explained below, a universal
acceptance of the role of Ijma as a source of law. The Quran- the word of God- Purports to
regulate the whole of a man's life; it is considered to be the actual word of God revealed to
the Prophet through the Angel Gabriel. It is clear that during Muhammad's lifetime, it was
used by him as the basis of legal settlement. The word 'Muslim' refers to submission to the
religion of Islam and its concomitant obligations 2. The Quran contains specific exhortations
to pray, fast, give alms, and go an the Halj, divorce, women, prayer and other similar moral
obligation. These are the pillars (arkan) of the faith and they exist alongside a number of legal
rules.

The fount of revelation came to an end with the death of the Prophet Muhammad in 632 AD,
because it was only to him that the divine will was revealed. The Quran thus contains the
divine commands and it is the duty of every Muslim to submit him or herself to these
commands. The word Islam itself denotes submission to the will of God. The Quran
contains about 6,219 verses, collected in 114 chapters called suras, but no more than about
600 deal with specifically legal matters. The essentially legal verses deal mainly with areas of
family law, which will be discussed in later chapters, but among the most important issues
dealt with are the introduction of the iddat period (the waiting period after divorce or death
during which the woman may not contract a new marriage) and the naming of nine heirs in
the verses dealing with succession on death. The verses in the Quran which are of a more
general nature, eschewing evil and seeking good, however, have also proved to be
foundations for principles of sharia. For example the verse Muslims abide by your
stipulations may be considered as the basis of the Islamic law of contract and the verse
There is no harm in Islam as the basis of the Islamic law of tortious liability.

2 Edge, Ian (ed.), Islamic Law and Legal Theory, Dartmouth Publishing Company limited,
Aldershot, 1996, pp.xvi-xvii.

The Sunna
The Sunna of the Prophet is the other supreme source of law. The Sunna comprises practices
and precedents set by the prophet himself. In pre-Islamic Arabia the tribes followed their own
various customary practices (i.e. their own Sunna). With the coming of Islam the jurists
began to place a new emphasis on the Sunna. Shafii, one of the greatest of the early Islamic
jurists, and after whom a school of law was named, held that the Sunna of the Prophet was of
equal importance to the Quran itself because like the Quran it was also of divine
inspiration.
The second major formal source of Islamic law is the Sunna. This word means 'Practise',
'Tradition' or 'Precedent' and derives from stories that relate to the behaviour of the Prophet
Muhammad and of his companions. These stories (known individually as Hadith, Plural
Ahadith) record the minutiae and detail of how the prophet and his Companions sought to
live their lives in accordance with the newly - promulgated religious order propounded by the
Qur'an. Particularly important amongst these stories are those which relate to the Prophet
himself in which he is not infrequently being asked to arbitrate disputes or decide questions
of law.
It was accepted that a new system of law required new norms of behaviour. The lives of
Muhammad and his Companions were seen by later generations as exemplary, being
influenced by Muhammad's closeness to God. Their behaviour therefore served as a pattern
for that ofall Muslims. The Ahadith were recalled, recited and recorded, at first orally and
later colleted into books. These collections of Ahadith which form the basis of the Sunna are
textually a much broader formal source than the Quran. The reason for this is that, while the
text of the Quran was finalized very soon after the Prophet's death, in the reign of the third
Caliph Uthman (who ordered an authoritative recession to be drawn In the Quran, the Sunna
usually occurs in two connections. Sunnatawwalin and sunnat Allah. In Hadis by sunna is
commonly understood Mohammad's sunna comprising his deeds, utterances and his
unspoken approval. "Muhammad's sunna in the sense of his words, actions and silent
approval is fixed orally and in writing in the Hadis. In theory the conceptions of Sunna and
Hadis
are
different
but
in
practice
they
often
coincide.
The sunna or tradition is a real storehouse of material for the life of prophet and
of Muslim institutions. During his life-time the prophet had decided many questions from
case to case and his words and deeds and silent approval were reduced to writing and came to
be termed as 'Sunna'. These traditions of what the Prophet said and did, gradually laid the
foundations of what is now called Islam. And it is to tradition rather
to
the
Quran
that
we
must
refer
for
Mohammadan
law.
The group of Muslim jurists called Ashab al Hadis as opposed to those known as Ashab atRay, attached greater importance to sunna as a source of law in preference to Ray. The zeal of
Ashab ai-Hadis led them to forge a number of traditions called Hadis alleged to have been

said or done by the Prophet. Most ofthese traditions were invented in the 8th century A.D. in
order to justify innovations and tendencies which were very foreign to the intentions of the
Prophet. Eminent Muslim jurists and scholars made compilations of the traditions in the 9th
century either according to the chronological order ofthe successive authors or on the basis
oftheir subject matter3.

IJMA
The third source of lslamic law is 'ijma' which means 'consensus'. The technical term 'ijma'
comes from a root jama'a, signifying "the totality", "everybody". The verb jama'a means "to
bring together" and in the fourth conjugation, jama'a "to agree together". Thus ijma means
literally 'unanimous agreement" or "total consensus". ljma also means consensus on rules of
law claimed to be derived from either the Quran or the Sunna4. ljma may take one or two
forms which are analytically distinct.
The first connotation of ijma is ijma al umma, "consensus of the people". This refers to cases
where a customary rule is adopted by common consent, even though the rule is not to be
found either in the Quran or in the Sunna as transmitted in the Hadis reports. The second type
of ijma (of far greater practical importance once a systematic Islamic jurisprudence began to
develop) is ijma-al-ulama, "consensus of the scholars". This type of consensus is rarely
unanimous in practice; it really consists of an agreement to abide by the majority view.
Al-Shafii defines ijma as the view held by the majority of the Muslims and uses it as a
secondary source of elucidation on questions which cannot be decided from the Quran and
the Sunna of the Prophet5. After some time, ijma was defined as the agreement of the
mujtahids of the people (i.e. those who have a right, in virtue of knowledge, to fohn a
judgement o f their own) after the death o f the Prophet, in any age, on any matter of faith.
Ijma thus did not signify the opinion of the masses. The agreement was not arrived at by a
council or a synod but was reached 'instinctively and automatically'. As a result of the
agreement the points in dispute got settled and each settled point became the essential part of
the faith; and disbelief in it came to be regarded as an act o f unbelief (kufr)
However, ljma was regarded as a major source of law and helped in overcoming the
difficulties arising from the disputes among Muslim jurists about the rulings and methods of
interpretations. "By means of ijma what was at first an innovation, and as such heretical, has
been accepted and has over-ridden the earlier sunna. ljma has not simply fixed unsettled
points, but has changed earlier doctrines, of the greatest importance. It is thus regarded by
many, within and without Islam, a powerful instrument

3
4
5

Qiyas
The fourth root of Islamic law is a system of logical reasoning called Qiyas. Although Qiyas
came to be called the fourth root only in the classical, post-Shafian period (Shafian himself
called Qiyas a "branch" rather than a "root" o f jurisprudence), the term itself is pre-shafian.
We first find the verb qis, "analogize" in the earliest known post-Quranic legal text, a
document called the instructions of Umar b. Khattab to the adi Abu Musa al-Ashani. Its
contents are recorded in text which, though dating from
Qiyas, "deduction by analogy" originally signified the derivation of rules of law by analogy
with earlier rulings found in the either Quran or the Sunna. The oldest juristic
analogies were rather crude. For instance an attempt to fix five dirhams (by analogy with five
fingers) as the minimum value of stolen goods which could incur the Quranic penalty o f
amputation o f the hand. But, later on, analogies became more sophisticated and the art of
Qiyas developed into an elaborate system which included many other kinds of rhetorical
argument besides analogy.
AI-Shafii says in his Risala that Qiyas is used in the cases which are not dealt with in the
Quran, Sunna or ijma. He regards Qiyas is of two kinds, Qiyas-i-Jali or evident and Qiyas-iKhafi or hidden. However, the use of Qiyas. was permissible only when it was impossible to
use these sources or "roots". "If traditions require to be verified by the sacred text, Qiyas does
still more so. Quran is the word of Allah, while Qiyas is the work of feeble the late ninth
century, trace the document back to the early eighth century

The development of the classical schools of jurisprudence

After the death of the Prophet Muhammad, Islam continued to expand. Distances between the
different areas under Muslim rule grew and as a result different centres of learning emerged.
These centres of learning consisted of groups of pious persons who surveyed the existing law
and engaged in fiqh (i.e. the science of law). These groups were initially geographically
determined but later became known by the name of the individual jurists whom the members
of these groups followed. There are four recognised schools of Sunni law: the Hanafi school,
the Maliki school, the Shafi school and the Hanbali school.

The Sunni schools

The doctrines of the Hanafi school, which was founded by Abu Hanifa in the beginning of the
eighth century, spread to Syria, Afghanistan, Turkish central Asia and South Asia. The Maliki
school formed dominance over central and western Africa and the Eastern Arabian coasts,
whereas the Shafi school can be found in eastern Africa, South Arabia, some parts of eastern
India and South east Asia. The Hanbali schools influence can be most readily discerned in
Syria and Palestine.

Apart from the division of the Sunni law into these four main schools of jurisprudence there
exists a second, broad division in Islamic jurisprudence between these Sunni schools and the
schools of the Shia sect. The Shia sect, which is nowadays found mainly in Iran, but also has
sizeable minorities in other countries, for instance Iraq and Pakistan, differs in many respects
from the Sunni schools. The Shia school of law emerged as a result of a political division of
the Islamic community after the death of the Prophet. The term shia itself means faction and
denotes that party, which after the death of the Prophet, attached itself to Ali, the son-in-law
of the Prophet, considering him the successor of the Prophet both in
It is not necessary to dwell deeply on the doctrinal differences between Shias and Sunnis
apart from pointing out that you are expected to have a basic understanding of the differences
between the Shia and the Sunni schools of laws in respect of the areas of law covered by the
syllabus.
temporal and religious matters. Central to Shia jurisprudence is the role of the Imam, a
descendant of Ali, who is regarded as the leader by divine right.

The Shia schools

The Shias themselves can be divided into three schools: the Ithnaasharis, the Ismailis and the
Zaydis. The Zaydis represent a very small minority within the Shia sect. The distinctive
hallmark of the Zaydis is that they regard the Imam as an ordinary human being who has no
closer link to God than any other member of the community. Both the Ismailis and the
Ithnaasharis, the latter being the most numerous Shia sect, believe that the Imam has a close
link to God, having been appointed by him. However, the Ithnaasharis believe that there
were no further Imams after the twelfth Imam retired from the world in 874 AD. In contrast
the Ismailis have maintained an unbroken chain of Imams from the time of Ali down to the
present.

Conclusion
The historical circumstances of the emergence of Islamic law in the seventh century AD
continue to determine the essential features of Islamic law today. The fact that Islamic law is
a divine (i.e. religious) law has had a profound impact on the development of the sources of
Islamic law. The divine character of Islamic law is not only reflected in the hierarchy and

essential characteristics of these sources but also explains the conceptual limitations on
individual law-making. However, the Islamic polity has developed legal methods to deal with
situations not directly provided for in the Quran and the Sunna of the Prophet. Indeed, many
Arab countries have implemented modern codifications of Islamic law which, while being in
harmony with Islamic law, nevertheless provide legal solutions for situations not
contemplated in the main source of Islamic law.