CHAPTER3

SOURCES OF MUSLIM LAW

SYNOPSIS
I. l'rim.iry Source:,. 1. The Urf or Cu.,tom.
J. Thl' Quran. 2. Judicial decisions.
2. The Sunnat and Ahadis. 3. Legislation.
3. The ljma (Consensus of opinio- 4. Justice, equity and good co1hCi l'ncc.
ns).
III. Sources of law according to Shi,1s.
4. The Qiyas (Analogical dl.'Cluctions.) IV. Sources of Hindu Law and Muslim L.w,,
II. Secondary Sources. Compared.

I. Primary sources.
The word Qurm1 has been derived from the Arabic word Quarra which
means to read.
1. The Quran.-The word Qumn which is the 'divine communication' and
revelation to the Prophet of Islam is the first source of Muslim Law. It is the
paramount and universal authority of Muslim Law. It contains the revelation
of God to His Prophet Mohammad, through angel Gabriel. Thus it embodied
the very word of God as they were communicated to the Prophet. The Q11ra11 in
its present form is a book divided into 114 Chapters and consists of
approximately 6666 verses. The chapters were arranged under the personal
direction of the Prophet, who used to ask the scribe present to insert the
revealed passage in a particular chapter. Thus it is not arranged in
chronological order, not by oversight but as commanded by the Prophet.
The verses of Q11ra11 are called Ayat and the chapters of this Holy Book
are called Sura. Not more than 200 verses are concerned with Jcga.l principles
and nearly about 80 verses are concerned with marriage, dower, divorce and
inheritance. The portion of Qurn11 which was disclosed to Prophet Mohammad
at Madina is concerned with legal principles, and the portion at Mt'ccn deal
with the philosophy of life and Islamic religion. The Quran docs not in any of
its portions proftess to be a code complete in itself. It was given to the world in
fragments, during a period of 23 years (609 to 632 A.O.) and it was never
collected and arranged in the lifetime of the Prophet. Al111 Bakar (who
succeeded the Prophet as Khalifn, and died in 634 after a rule of two years) for
th e first time collected the various passages of Quran. Another sixteen years
elapse~ and then Usman the third Caliph ordered the second revision of the
~~,a,~ m 6~0 A.O. i.e., 18 years after the death of Prophet, it took the textual
S m m which we have it at the present day. 1 The arrangement of the whole
f al~re~ Book into chapters, was completed under the supervision of the
t~· ~win? expert-Zaid, the son of Thabit; second, Abdullah, the son of Zubair,
w~r k Said, the son of As; and fourth Abdur Rahman, the son of Harith. The
r was completed after careful scrutiny and comparison with other
,.--~~;-'.'-:-----
Ty.ibji p · .· . ·
· ' rmuples of Muslim Law pp. 2,3.
( 15]
 j

·,
16 MOHAMME9AN LAW

fragments and presented to khalipha, who caused a number of copies to be O\ad

and sent them to different centre's otdslam and these ~ecame texts for al~
subsequept copies of the Sacred Book. The fragments m the posi-ession f
different people were recovered and burnt. The Prophet (PBUH) encouraged
companions to write and learn the text of the Surahs ?Y heart. '!he attachment
h:
of the Muslims to the Sacred Book was so great that 1t has retained its purity,
without the least change, for the last one thousand and three hundred years.
The style of the Quran is the most beautiful, fluent, concise, persuasive and
possesses great force of expression. It is composed neither in poetry nor in simple
prose. The sentences generally end in rhyme; words being well selected and
beautifully placed. 2
A very small portion of it has any reference to law laying down the broad
general principles concerning with .marriage, dower divorce and inheritance.
Broadly speaking it can be pointed out that-
(a) Quran is the primary source of Muslim Law, in point of time as well as
in importance. Quran is the first source of Muslim law. The Islamic
religion and Islamic society owes its birth to the word of Quran. It is
the paramount' source of Muslim law in point of importance because it
/' contains the very words of God and it is the foundation upon which the
I very structure of Islam rests. Qurari regulates individual, social, secular
and spiritual life of the Muslims.
(b) It cqntains the very words of God as communicated to Prophet
Mohammad through angel Gabriel.
(c) It was given to the world in fragmentary forms, extending over a
period of twenty three years.
(d) It originally had for its objects (i) repealing objectionable customs, such
as,. usury, unlimited polygamy and gambling, etc., and (ii) effecting
s~c~a! reforms, such as ra~sing the legal status of women and equitable
d1v1s1on of the matters of inheritance and succession.
Quran as a Source of Law
The contents of Quran may be classified under the four heads:
1. Ivfetaphysical and abstract;
2. Theological;
3. Ethical and Mystical; and
4. Rituals and legal.
W~ are here co~cerned with the legal aspect only. The rules of Islamic law
~ccur ~ th; fo~lowmg chapters of Quran-Al-baqara-cow, Al-nise-woman Al-"
1:::taefaam~lily offIImranl, Al-maidah-the food, An-nur-the light and Bani-
1 y o srae.
There n.iles relate to-
(a) Reform ln unlawf ·1 h th
drinkin f. . u ea en customs, such as infanticide, gambling,
g o intoxicants, usury, polygamy etc.
- - - - - - I
2. See. Mohd. Hamidu!Jah Khan Th h
. , e sc ool of Islamic Jurisprudence, pp. 14-15.
 --
SOURCES OF MUSLIM LAW 17

. 1 rdorms, such as marriage, position of women, divorce, chastily

(b> 5o<=ta en and women, texts relating to which came lo be quoted
ofbrn•quently in connection with the use of the veil by women, their
5U SC •
seclusion, succession etc. .
Criminal laws relating to punishment for theft, fornication, murder
(c)
etc.
Direction relating to the treatment of enemy, the distribution of booty
(d) ,
etc.
e) ternational law of war and peace, and directions relating to the
( 1
;eatrnent of non-Muslim and their protection of rights.
. . of Laws Revealed Before Islam.
va1id1ty . . .
rding the validity of laws revealed before Islam, there 15 difference
R~g~ ns among Jurists. The Hanafi doctrine is that only such laws of
0 1
of f nioreligions are binding, as have been mentioned in the Quran without
p~eviou~val. This restriction is due to the fact that the teachings of previous
d15_a~pnsr have not been transmitted to us in the original form revealed by God .
rep
1 .
Legislative Functions of the Quran :
Although as professor Fitzgerald says in his book titled 'Muhaminedan
Law' .
The Qurnn is an eloquent appeal (to Muslim ears a miracle of eloquence)
to mankind and to the Arabs in particular, to obey the law of Cod which, it
is (in the main) implied, has already been revealed or capable of _being
discovered". \
the Qurnn has influenced the creation of Islamic legal system in the
following ways :3 ·

(a) The Prophet (peace be upon him) faced legal problems and so did his
companions and the Quran provided guidance. In doing so, along with
building up concrete behaviour patterns of the Islamic social system, it
gave such texts which possesses definite legal element. There are about
five hundred such tex'ts. Most of these deal with the ritual and eighty
of these provide the material which would be called legal by a
western lawyer. These eighty verses have been construed by method of
statute interpretation, so as to extract the utmost ounce meaning from
th
e~. For example, the intricate system of inheritance has been built
up rom about half dozen verses only.
(b) Non-legal t t . h . . .
hav b ex s in t e Quran moral exhortations, and D1v1ne Promises
"su~t e~~ c.~i1strued by reasoning to afford legal rules. Thus the texts,
usury ~I ey say, usury is like sale, but God has made sale lawful and
both is • awful, and they ask thee concerning wine and gambling. Say in
5
· thereo f 1s
than the ind and. advan t age f or men (too) but the sin · grea ter
octrine of contract. (The lawfulness of contract and those
Dr.Jilan1, R •
. Reconstrucli
on of Legal Thoughts in Islam, p . 57.
 MOHAMMEDAN LAW
18 which in Islamic Law resemble
Kafala Jqrar) h · bl
unilateral acts (e.g., ti,;,ated in terrns of t eir r~m ~ • to sale
with contract, is mostly es terms of usury and gambhng. Sunilarly ~
and the unlawfulness m the ·11 not punish anyone save for o~e's own
texts proclaiming that God
ins have been applied
;~t
to e ~
which ·a person leaves unpaid at his
the law of adminjstration of assets
S
death with far reac in
h' g results mission of water h unting
JJl · has been·
k · lawful the per
The text ma mg . t0 the fish only.
restn•cted ' by reasoning . s revelations have been corrupted the
(c) By pointing out that the prev1.otu 'al with the 'people of the Book·
Quran dee Iare
d the legal ma en d th
the people to aban on e customs of
unreliable. It al.s o called ~/':'~ Jaw of God. In any case it repealed the
their ancestors m_ f~vou:vailable outside the sphere of the Book and
entire legal proVIsions rt . revious customs as well. For instance, it
the Sunnah. It adopted ~e ~n the condemnation being general and
1
made the sale la~_fu ~he le al rinciple will be, that the custom or
adaptation be specific,
practices, shall be presume o
fd b~ prohibited unexpressly adopted by

Islam. h · th di
th heathen Arabs to the law t at 1s e rect
(d) The Quran converted e th G d . th
d f G d S. nee it is corrual tenet of Islam at o is one, e
comman o o . f1 him The believers are bound to search for that
whole must emerge rom . .. fr th .
.h b &0 und in addition to the Quran, om e soaal
whole wh ic can e 1' , • th S nah
syst~ built up by holy Prophet (peace be upon him) e un .
Rules of Interpretation.
The Interpretation of a J~gal text. is. governed bf principle. called istidlal.
The following are the important prmc1ples acco~dm~ to w~1ch words and
phrases oc<;uring in a text are interpreted. The obJect 1s to discover the legal
provisions contained therein.
(iJ The General and the specific.-A general word covers everything to
which it is applicable. The general text cannot be limited except by an?~er
text. Effort should be made, first of all, to reconcile two appare~tly conflicting
propositions. About waiting period of the widows it has been laid down in the
Quran. Those women whose husband are dead should restrain themselves (from
marrying again) for four months and ten days. In another verse, the Quran lays
that waiting time for ·the pregnant widows is until delivery. The two texts
would be reconciled by holding ~at. the period of waiting for widow is the
· remotest of the two, as the case may be:·
When the conflict cannot be resolved and the two texts are of general
imp~rt~ ~ne of them s~ctioning a certain thing and another prohibiting it, the
proh1b1tmg speech, will prevail. In case both the texts are of the same
character, and c?nflict canno~ be resolved, the latter will n~peal the former to
the extent to which they are m conflict.
~hen ;Wo proposition~ one of ·gene}al and the other of specific impor'
confhct with each other, if the general propositions is later in dale, the
sp~fic will be held to have been repealed so much of what is laid down by the
 SOURCES OP MUSLIM LAW 19

general to the extent of incun.sistency and !he general propositions will retain
its general character.
(ii) Tl,e absolute and tile qualified.-Where there are two propositions,
one absolute and the other qualified, and what is laid down by one of them i1-
distinct from what is laid down by the other, effect should be given to both. Jf
two relate to a single injunction of Jaw with reference to the same facts, the one
absolute in its terms will be read ~ubject to the qualified text. For instance, it is
laid down that in a certain event one must fast for sixty days, and it is also laid
down with reference to the same event one must fast for sixty sun:essive days.
The inference is that the fasting must be for sixty successive days.
(iii) The Primary and the secondary.-The words shouli be interpreted in
their ordinary sense unless the content requires a secondary meaning. If a word
is used in its dictionary sense it is regarded as proper in connection with such
application and, if that word is used in another sense1 it may convey
conventional, technical or figurative meaning. The tropical or a secondary
application of a word consists in its transference from its original to a connected
sense. After such transference has taken place, it is the new meaning whi..h
prevails, and both the meanings cannot be assigned at one and the same time.
(iv) Denotation and connotation.-A word conveys its meaning either by
denoting the thing to which it is originally implied or that which it
necessarily implies as a consequence of its application in the text. Such
expression of meaning may be directly by the language of the text or indirectly
by way of connotation or suggestion. Sometimes a word may indicate something
which its application precedent sometimes from what is expressed in a text it
may appear that it applies to some other matter which comes within its
intendment by the necessary implication of the language.
The denotation means that what is clearly and man'ifestly the subject
matter of the text. Connotation means what is indicated by the words of the
text without adding anything to it or taking into consideration context thereof.
For instance, the denotation of the verse.
"For the destitute immigrants who were turned out of their houses (Q. ix.
8)." .
"is the share of the immigrants into the property acquired in war. Its
connotation is that the right of ownership of such persons over the property
they left is lost, because the word destitute has been used which is applied
only in respect of the -persons w · nothing. This lays down the laws
that the disbelievers beco ~ . ners of the properties of the
Muslims which they cap i·..di~~~~..h
The instance of necessar band utters to his wife that
she be speni hc1 waiting p r ilAliislla;.;'""""- has divorced her because
divorce is the precondition
The intendment of the t r""flllraar he legislator. This should
be inferred literally and not · :~"'µ~
. ~ ~ deduction. For instance, it
has been ordained in the Quran re--·"":L.L arents:
"Do not utter anything contemptuous to them, nor de~sert them", (Q. ,c'v 17).
 MOHAMMEDAN LAW
20
. ll beats his father but does not utter any contern
If a per..on physica Y. 'olated the verse by defeating the ob,iect ~
words to him, he has stJ 11 vi . of ~
legal provision contained therein. .
. d t f text is called in the Western legal temunology ~f .
The mten men o . es the discussion of Interpretation of Statutes ~
of Text. Paton summans • 10 the
following words :
"In the English Law, there are three basic rules of int~~etation. The first
is the literal principle, the second is called lhe Golden pnnaple which rnear-15
that ordinary meaning should be attached to the language_ ~f law unless it
.
mvo al . The th·Jrd
1ves some di'ffi'culty or conflicts with .the other prov1s1ons.
th
principle is the Mischief Rule which emphasises e gener pohcy of law•.
Doctrine of Repeal :
Naskh literally means to delete. Legally it me~ns repeal of a legal
provision by another legal provision. Both the repealing and repealed laws
must be revealed. By way of repeal alteration is made in the law by the Law
Giv·er.
The instances of repeal are found in the previous Shariahs also. In the
Shariah of Jacob, real sisters could be married together, but the Shariah of
Moses repealed it.
The jurists differ among themselves about the scope and definition of
repeal. Some jurists include specification of general and qualification of
absolute in the definition of repeal. According to them, the number of the
repealed verses of the Quran is sufficiently 1atge. But the later jurists restrict
the ·definition of repeal to those verses whose legal effect has been totally
abrogated. There are five verses in the Quran, according to the res.earch of
Shah Wali-Allah Dehlawi, whose legal effects has been totally repealed.
The law which these verses enunciate has been repealed so far as their
recitation is concerned, text has not been repealed. The repeal may of :
(i) One quranic text by another. In the verse.
It is prescribed, when death approaches any of you, if he leaves any goods,
that he make bequest to parents and next of kin. (Q. II : 180).
It was laid down that one must make provision by will for his parents and
other relatives but this was repealed by the verse.
"Allah directs you as regards your children" (Q. lV : 2) wherein the
paren~ and other relatives of a deceased are allotted shares in the inheritanee
as herrs. .

(ii} A tradition by another tradition.

(iii) A tradition by a Quranic text.
(iv) A Quranic text by tr d'f · "Th · • th
H afi d h .. . a 1 mn. ere 1s difference of opinion among 1
an . an t e Shafi JUnst regarding this kind of repeal.
In mterpretation the Q · b" · n·
. ' uran is su Ject to the express rulings in ancie·
commentanes.
 SOURCES OF MUSLIM LAW 21

In Aga Mohammad Jaffer v. Koolsom Beebee, 4 Their Lordships of the Privy

Council held that where a passage of Quran has been interpreted in particular
manner in the Hedaya and lmamia, it was not open to court to construe the same
in a different manner.
2. The Sunnat and Ahadis (Traditions) :- It is the belief of Muslims that
revelations were of two kinds-Manifest (zahir) and internal (batin). Manifest
revelations consisted of the communications which were made by the angel
Gabriel under the direction of God to Mohammad in the very words of God.
Quran is comJ.,u~ed of manifest revelations. Internal revelations consisted of the
opinions of the Prophet and delivered from time to time on questions that
happened to be raised before him. Sometimes, it happened that no direct
revelation came to the Prophet and in the meantime some question had to be
decided. In such circumstances, the Prophet exercised his own judgment and.- .
frequently consulted his companions. The ideas contained in such opinions of
the Pro.,..1-iet were inspired by God. During his lifetime, the Prophet pronom1ced
his .-e.· 1i.'ts, did certain things and also allowed tacitly the doing of certain
thin 0;) 1·, .mitted by Islam. Co~equently "what was said or done or upheld in
silence by the Prophet" become5'a primary source of Muslim Law, second in
point of time and authority, only to the pious Quran and is technically known
as Sunnat. Sunna means the model behaviour of the Prophet. The narrations of
"what the Prophet said, did or tacitly allowed" is called Hadis or Traditions.
The Traditions, however, were not reduced to wri~g during the lifetime of
Mohammad. They have been preserved as Traditions handed down from
generation to generation by authorised persons. That is why a minute inquiry is
necessary to accept a Hadis. Thus when a Hadis is confirmed by one person, it is
known a Khabar-al wahid and is a weak Hadis . When a Hadis, is proved by
several declarations, it becomes a strong Hadis. The Shias do not believe in a
Hadis. which is not derived from the house of the Prophet, particularly from
the house of Ali. At the time of his death, Quran supplemented by Sunnat
framed the whole body of Mohammadan Law-Civil, Criminal and Religious.
The importance of Hadith as an important source of Muslim laws has been laid
down in the Quran itself.
\

The Quran says :- "Whatever the Prophet gives accept it, and whatever
he forbids you abstain from it." LIX : 7).
It also says: -"He does not speak out of his desire. It is not but the
revelation revealed to him." (LIII : 3-4).
"Obey God and obey the messenger." (N : 58).
Once the Prophet said to his followers : "So long as you hold fast to two
things which I have left among you will not go astray, God's Book, and His
messengers Sunna.".
Kinds of Traditions-The Traditions,are of two kinds:-
1. Sunnat : and
2. Ahadis.

4. (1897) 25 Cal. 9, 18 : 24 I.A 196,204.

 -
22 M OflAM ~fEDA N L/\\\'

These two have been dassificd into the following three classes on the b
of the mode or manner in which it has actually originated :- asi.s
(i) Smrnat-lllfail i.e., Traditions about which the Prophet did himself.
(ii) Swmat-111-qm,I i.e., Traditions about which he enjoined by words.
(iii) Sunnat-11/-tuqrir i.e., The things done in his presence Without his
disapproval.
Above are enumerated the three kinds of Sunnal. The three clas~s f
Ahadis are siven below. This classificati~~ unlike_ th~ a~ve, ha~ been made ;
the basis of the authenticity of the trad1hons which m its tum IS dependent in
the manner in which each particular tradition has been preserved :
(i) Allradis-i-nmlwatir i.e., Traditions that are of public and universal
propriety and are held as absolutely authentic. In such Hadis the
chain is ~flmplete.
(ii) Ahadis-i-Mashlwor, i.e., Traditions which though known to a
ma;ority of people, do not poc,sess the character of universal propriety.
(iii) Ahadis-e-waltid i.e., Traditions which depend on isolated
individuals.
Compilation of Hadis.
Generally two misconceptions have been c,pread about the compilation of
I-fa.dis. firstly they were orally transmitted and were not recorded during the
period of the Prophet. Secondly, the sense uttered by the Prophet could change
during the oral transmission.5
The companions of the Prophet used to take the Sunnah as binding
authority and were very anxious to learn it by heart for themselves and for the
1,urpose "f further transmission. Some of them used to write it also. Abu Daud
a.r.d Darimi have narrated from Abdullah bin Amr bin al As :
1

1
'Whatever ! heard from the Prophet I used to write it to learn it by
heart. Some persons from the Qureish objected to this and said that the
·:-:--•.>phet was a man and sometimes he was talking in anger and sometimes
~1~ was happy. At this I stop writing and also told this to the Prophet. He
rdered to continue writing and pointed with his finger towards his mouth
and said after swearing in the name of God that nothing but the truth comes
out of that".
!v!any books of traditions ~ere compiled by the companions of the Prophet.
The remarkable ones are Sah:fa Sadiqa, Shafia Ali, Aahifa Abu Bakr,
Sahif.t Jabir, Sahifa Samura and Sahifa Sahia etc. The traditions of these
books have· been narrated by famous traditionists like Bukhari, Abu Daud,
Hakim, Zai !ai etc in their collection,. Perhaps this is sufficient to remove thr
mi,.::.on~q ilio11 that the work of cot.. : )ifation of Hadis started one hundred "ears
• A )
,\Her the c.!eath of the Prophet.
Abu Hurair'1h . a repukd authority on Haditiz said, "None is a better
Kf'c>per and nr,rrator of I-Jadis than me except Abd Allah bin Am.r bin al-As-
ThM is b~caus•' !1e !zs,~d to write whatever he heard from the Prophet.

s,,. · : . ~-],1, : : rl,e l,t'construction of il•~al thought is islam, p. 74.

 SOURCF.S OF MUSLIM LAW 23

Anas bin Malik the devout servant who lived with the Prophet all
through his stay in Madina, and who died in 93 A.H. said, ·~Every now and
then I took down notes on interesting points from what the Prophet said in his
discourses and other occasions of conversation; and I used to read these notes
over to the Prophet whenever I found him having leisure, and after he had
corrected them, I made a fair copy of them for my own record. n
It is also incorrect to say that the traditions were transmitted orally.
Ahmad bin Hanbal says about Abd Allah bin Mubarak that he used to transmit
traditions from the book. 6 There are persons who generally assume that
traditions were recorded for the first time by compilers of the classic collections
like Bukhari, 11uslim, etc. The reason for this assumption is the
misunderstanding of the term HADDATHANA (it was reported to us).
Sprenger was the first orientalist who understood that this word usually did
not mean an oral transmission, and in those days it was the practice to refer to
authors instead of works.7
Qualifications of Narrators.-A trustworthy narrator must have
understanding. The report of an .infant or a lunatic cannot be accepted. He must
possess the power of retention which implies that he should have properly
heard the words of the speaker, is capable to understand their meaning, should
be able to retain them in memory, and is capable to reproduce with accuracy at
the time of narration. Lastly he must be a Muslim Qf righteous conduct, which
signifies that he generally follows the injunctions of religion and reason.
3. The Ijma (consensus of opinion).-Jjma has been defined by Sir Abdul
Rahim as "agreement of the jurists among the followers of Prophet Mohammad
in a particular age on a particular question of law". Wilson defines it as
concurrence, meaning propositions shown to have been accepted as indisputable
under the first four "rightly directed", Caliphs or in the time of the
companions and of the generation immediately succeeding them.
Under this collective name are included the explanations. elucidations and
the decisions of the disciples of the Prophet. According to the classical theory,
failing Quran and traditions, the consensus of opinion amongst the companions
of the Prophet is recognised as the best guide of law. Thus it is the third source
of law, both in the point of time and importance.
However, there is ·great difference of opinion among the important Muslim
jurists with regard to the requirements of a valid 'ljma". Nevertheless there is
general agreement that ljma of the companions of the Prophet should
invariably be accepted.
The authority of Ijma as a source of Muslim law is also founded on Quran
and Hadith. Quran says : .
"O ye who believe; obey God and obey the Prophet and those of you
who ate in authority, and if ye have a dispute concerning any matter rPfer
it to God and the Prophet." 4 : 59.

6. See, Dr. R. Jilani : The Reconstruction of legal thought is Islam p. 78.

7. Sprenger J.A.S.B. 1850 p. 9.
 24 MOHAMMEDAN LAW

•Toere can be no consensus on error or misguided behaviour amongst my

people•.
Importance of ljma.-The Law is something living and changing. Socia}
values are subject to constant changes and these changes in their tum affect
law. Hanafi School is of the view that law must change with the changing of
times. According to Maliki School, new facts require a new decisions. The airn
of the law is to fulfil the needs of the Society. The principle of ljmll is based
upon the following texts : "God will not allow His people to agree on an error
and whatever Muslims hold to be good is good before God•. With the march of
time, development of civilization and the expansion of the Islamic influence
numerous problems arose which oould not be decided by reference to only Qunm
and Ahadis (Traditions). The jurists, therefore, evolved the principle of ljma
The laws are needed for the benefit of the community, therefore, the Divine
Legislator has delaged power to lay down laws by the resolution of those men
in the community who are competent in that behalf, . i.e., 1:1'~
~ujtahids or
jurists. Since the Muslim religion does not admit the poss1b1lity of further
revelation after the death of the Prophet, the principle of ljma is the only
authority for legislation in the present Muslim system.
,I
;
'. Essential Ingredients of a valid·Ijma
The definition of ljma has got the following ingredients :
(i) The consensus.-The majority of the jurists is of the view that
unanimity is a pre-requisite for Ijma. If there is a dissension, although it is by
a small minority, Ijma will not be constituted. However, some of the jurists are
of the view that Ijma may be constituted by majority also.8
Consensus may be reached through three stages. Firstly, the people express
their views. Secondly, discussions and debates take place. Thirdly, the
differences are dropped and they agree on one point. Ijma constituted by
majority is binding in action but it is not obligatory to believe in its truth also.
It is not absolute like Ijma by unanimity, in the sense that a person disputing
it would become an infidel.
(ii) The Jurists.-In every field of knowledge, only the opinions of the
experts are admissible. Since the jurists being the experts, therefore, only their
opinions are relevant for Ijma. There are, however, two kinds of religious
matters. One which do not require any advanced knowledge for their
recognition; such as saying the prayers five times a q.ay, keeping fast during
the month of Ramdhan _etc. These matters do not call for any discrimination
between the jurists and the general public. There are others which are beyond
the reach of the competence of the public at large and whicn require skilled
opinion; such as the rites of the marriage, the rules of divorce, the principles of
sale :tc. In the latter category only opinions of the jurists are admissible and
the VJews of the general public are irrelevant.
(iii) Jurists of a Particular Period.-There could be no law laid down by
ljma during the Prophets life time.
8. T'r. r,ani, R : op. cit. p. 107.
 ~OURCES OF MUSLIM LAW 25

Jjma of one age may be reversed by subsequent Ijma of the same age.
SimilJrly, ljma of one age may be superseded by ljma of a subsequent abe. But
the Jjma arrivt'd at by the companions is incapable of being reversed or
superseded.
(iv) Jurists to be the Muslims.-The views of the jurists beJongiag to the
non-Muslim communities are not admissible for ljma.
{v) Consensus on a Religious Matter.-The religious matter may be of two
kinds : points of fact and points of Jaw. Ijma on the matter that the text of the
Quran which is with us, is the same that was revealed to _the Prophet, is ljma
on point of fact. Ijma on the matter that the Government of the Muslims must
have representative capacity and should run by consultation, is ljma on point
of law.
Repeal of Ijma.- Repeal means abrogation of the legal effect of a text by
means of another text. Ijma is not in itself a text. It is an opinion or judgment
based on the authority of some text which may or may not be quoted
alongwith : The texts are contained only in the Quran and the Sunnah. Thus,
Ijma cannot repeal : the Quran or the Sunnah.
The doctors of Islamic jurisprudence are generally of the view that Ijma
can neither repeal anything nor can be repealed by anything. Bazdawi,
however, is of the view that a latter ljma can repeal a former ljma.
Kinds of Ijma
The Ijma is of three kinds-
(a) Ijma of the Companions of the Prophet.-It is universally acceptable,
throughout the Muslim world and is unrepeatable. Abdur Rahim in
his book entitled Muhammadan Jurisprudence says : .,Great weight
will be attached to the Ijma of the Companions of Prophet inasmuch as
the Companions were appointed with the viewpoint of Prophet and
remaining close to the Prophet they had almost adopted the same way
of reasoning as the Prophet. However, due weight could only be
attached to such Ijma of the Companions which was well-known in
their lifetime and has been held thereafter by reliable men".
(b) Ijma of Jurists.-So far this particular kind of ljma is concerned there is
diver 6 ence of opinion regarding-(a} the exact procedure of
formation-Which nowhere has been laid down, (b) the exact number
of jurists necessary to form Ijma, (c) whether the Ijma is by majority
·decision or by unanimous opinion, (d) whether ~e decision of a jurists
should be preceded by reasoning, and (e) whether all of the jurists
should sit together to form Ijma.
{c) Ijma of the People.-Though in theory the opinion of Mulsim
population as a whole may have any importance but in actual practice
ljma of Muslim public had no value with regard to legal matters, but in
matters relating to religion, prayer and other observances great weight
is attached to it. The fundamental observances of Islam as to prayers,
fasting, pilgrimage and proof rate have been established by ljma of the
people.
 26 MOI fAMMEDAN LAW

ljma cannot be confined or limited to any particular age or count .

completed when the jurists, after due deliberation, come to a finding. ltry. It 1s
then be questioned or challenged by any individual Jurist Ijma of one a;:nnot
be reversed or modified by the ljma of the same or subsequent age.9 rnay
4: The Qiy~s (Analogical de~uctions).-Thisfris thehlastbovprimary source of
M ushm Law. Qtyas means reasonmg by analogy om t e a e three sour
;.t., t~e Quran, the Sunnat and the ljma. In Qiyas r~les are deduced by~~~
exercise of reason. This has been supported by a Hadrs of Prophet which rna
be quoted here. When Mu'adh was being sent to Yemen, the Prophet asked hi y
. rn
on what would base his decisions. "I will judge them accord mg to the Book of
God", he replied.
Prophet : "If the Quran does not give guidance to the purpose?
Mu'adh : 'Then upon the usage of the Prophet'.
Prophd : 'But if that also fails you'.
Mu'adh : 'Then I shall follow my own reasons'.
The Prophet raised his hands, and said. 'Praise thee to God, who guides
the messenger of His Prophet in what He pleases".10 Qiyas consists in applying
some text if the case can be demonstrated to be governed by the reason of the
rule underlying it although the language may not apply.
Thus Qiyas may be defined as a process of deduction by which the law of
the text is applied to cases, which though not covered by the language are
governed by reason of the text. Thus, it should be noted that Qiyas does not
purport to create new law, but merely to apply old established principles to
new circumstances.
It also gave rise to the new s~h~ol of law represented by Az-Zahir. But
though the majority of jurists agreed on the necessity of having recourse to find
reasoning in order to supplement the Quran, Sunna and Ijma for developing the
law, they had great difficulty in fixing upon the exact form in which, and the
limitations with which reason could be employed in questions of law and
religion. 11
This source, namely, Qiyas is of no value to persons belonging to the school
of Ahmad Ibn Hanbal, the great traditionist. The Shias also do not accept
Qiyas because they are of the opinion that if law need to be enlarged it must be
by the Imam and none else. The Shafis also regard Ijtihad and Qiyas as
contradictory of their own views.
Those who do not give much value to this source quoted the fol1owing text
from Quran; ·
"And we revealed the Book unto thee as an exposition of all things. "
(16 : 89}

"We have neglected nothing in the Book". (6 : 38} ·

9. K.P. Saxena; Muslim Law p. 9.

JO. Principles of Muslim Law by Tyabji, 4th Edn. p. 21.
11. !bid.
 SOURCF5 OF MUSLIM LAW 27

The pro-Q!yns group aJso cite many Quranic text and Hadith in their
support, few of which are as follows :
"As for these similitudes we cite them for mankind but none wilJ grasp
their meaning save the wise." (19 : 43)
"Learn a lesson, 0 ye who have vision to see" (59 : 2)
The Prophet is reported to have said : "Give your rulings in accordance
with the (provisions of the) Book and the Stmna/r if such are available. If you
do not find such provisions, h,H'P. rerourse to your opinion and interpretation.,.
Legal Authority of Qiyas as a Source of Islamic Law:
Qiyas in the Light of Holy Quran.-Holy Qura11, says, "Spend (i.e.
charity) out of your good things because as you dislike to take bad things,
others also may dislike."
In the Quran it is often said, 'Ye men of wisdom take lesson' : These verses
are enough to indicate how the validity of Qiyas is established by holy Quran.
The Quran is all comprehensive and no one can claim to have full and
complete knowledge of it. The verses of the Quran are classified into two
categories-MUHAKAMAT and MUTASHABEHAT-Muhakamat are clear
in meaning whereas Mutashabehat are such verses which are capable of
v.,rious meaning. It is the duty of a jurist to ascertain the meanings of such
verses. Sometimes they are expressive, sometime indicative and sometimes
elucidative, hence such verses provide room for Qiyas .
Qiyas in the Light of Hadith.-
, In deciding legal issues, Prophet himself
relied on the Quran and on Qiyas . Instructions to Muadh lbn Jabal clearly
shows how he approved Qiyas in deciding legal issues.
Qiyas was upheld by the Prophet both by precept and practice. Even in the
period of caliphate the validity of Qiyas was not questioned. According to
Imam Abu Hanifa, by the process of Qiyas the proposition is diverted towards
the Quran and Haditlz . All the four Sunni schools accepted Qiyas as valid
source of law and in fact much of the Sunni law is evolved as a result of the
recognition of this institution. 12
Conditions for the validity of Qiyas
1. The original source from which Qiyas is deduced must be capable of being
extended, that is, it should not be of any special nature. --
2. The law of the text must not be such that its raison de'tre cannot be
understood by human intelligence nor must it be in the nature of an exception to
some general rule.
3. The original order of the Quran or Hadit/1 to which the process of Qiyas
is applied should not have been abrogated or repealed.
4. The result of Qiyas should not be inconsistent with any other verse of
Q11ran or any established Surma. ·
5. Qiyas should be applied to ascertain a point of law and not to determine
the meanings of words used.

L 12. See, Mohd. Hamidullah Khan, op. cit., p . 4H.

 28 MOHAMMEDAN LAW

6. The deduction must not be such as to involve a change in the law

embodied in the text.
However, concluding the discussion it can be said that QiyaJ is a Wea.k
source of law and rules analogicall~ deduced do not rank ~ ~gh as authority,
as those laid down by Quran or Haditlt or by consensus of opuuon. The reason is
that with respect to analogical deductions one cannot be certain that they are
what the law giver intended. Such deductions always rest upon the
application of human reason which always are liable to err.
II. Secondary Sources.-In addition to these four principal sources of the
Muslim law, we find that law was occasionally supplemented by Urf or local
usage also.
1. Urf or Custom.--Custom was never formally recognised as a source of
Muslim Law, though it has been occasionally referred to as supplementing the
law. The Muslim Law includes many rules of pre-Islamic customary law, which
have been embodied in it by express or implied recognition. Sir Abdur Rahim
says : '1he ground-work of Mohammedan legal system, like that of any other
legal system, is to be found in the customs and usages of the people among whom
it grew and developed. Those customs and usages of the people of Arabia,
wrJch were not expressly repealed during the lifetime of the Prophet, are held
to have been sanctioned by the Law-giver by his silence. Customs (Urf-tasmul-
ul-adaat) generally as a source of law are spoken of as having the force of ljma,
and their validity is based on the same texts, as the validity of the latter. It is
laid down in Hedaya that custom holds the same rank as ljma in the absence of
an express text, and in another place in the same book, custom is spoken of as
being the arbiter of analogy. Custom does not command any spiritual authority
like Ijma of the learned, but a transaction sanctioned by custom is legally
operative, even if it be in violation of a rule of law derived from analogy;
it must not, however, be opposed to a clear test of the 'Quran' or of an
authentic tradition. Custom which is recognised as having the force_of law,
ust be generally prevalent in a country. It is not necessary that it should have
d its origin in the time of the companions of the Prophet. It is of the very
ssence of custom that it should be territorial, so that custom of one country
annot affect the general law of other countries. Further, it has authority only
so long as it prevails, so that the custom of one age has no force in another
age"_13
The req~ments of a valid custom are as follows :
(1) General prevalence in the country is necessary. The practit:e of a
limited number of individuals cannot be recognised as custom; '
(2) It must be territorial;
(3) It need not be existing from the time of the Prophet's companions. All
that is necessary is that it should · be immemorial. The word.
'immemorial' means beyond human memory. Customs springing up
within living mem~ry, will be enforced if prevalent among the Muslims
of the country in which the question of their validity arises;

13. Mohammedan Jurisprudence, pp. 136-37.

 SOURCES OP MUSLIM LAW 29

(4) It must be ancient and invariable; and

(5) It should not be opposed to public policy.
Shariat Act, 1937 aims at restoring the law of Islam to aU Muslim
communities residing in India and abolishing customs contrary to the Shariat.
This Act is applicable to every Muslim irrespective of the school to which he
or she belongs. Section 2 of this Act has abrogated customs and usage in so far as
they had displaced the rules of Muslim Law. This section lays down that in all
questions regarding intestate succession, special property of females, marriage,
dissolution of marriage, maintenance, dower, guardianship, gifts, tr usts and
trust properties and wakfs, the rule of decision in case where the parties are
Muslims shall be the Muslim Personal Law (Shariat), and any custom to the
contrary effect would not apply in such cases. But in the foUowing matters a
Muslim is still governed by customary law :
(i) agricultural land;
(ii) testamentary succession in certain communities; and
(iii) charities, other than wakfs.
If a person belonging to a community whose customs regarding adoption,
wills and legacies prevail; makes a declaration in a prescribed form before a
prescribed authority under Section 3 of the Shariat Act, he will thereafter be
governed in all respects by Muslim Law. For example under customary law, a
Khoja Muslim has power to will aw.,ay the whole of his property. But by
making this declaration, he loses this right and is governed in all respects by
Muslim Law.
Before 19.38, the Cutchi Memon Muslims retained their customary law,
which was identical with Hindu Law regarding succession and inheritance and
they could dispose of the whole of their property by will. But after the passing
of the Cuthchi Memons Act, 1938 the Cutchi Memons have been governed in all
respects by Muslim Law.
2. Judicial decisions.-These include the decisions of the Privy Council, the
Supreme Court, as well as of the High Courts of India. In deciding particular
cases the judges enunciate what that law is. These decisions are regarded as
precedents.for future cases. A precedent is not merely an evidence of law but a
source of it and the courts of law are bound to follow the precedents. Strictly
speak~g, judicial decisions only declare the law as it is and are not a source of
it but they undoubtedly supplement and modify the Law. Muslim Law is no
exception to this rule. While applying and interpreting law in a particular
case, the Judge expressly or impliedly declare as to what law would apply in a
particular circumstances. The decisions become an authority for subsequent cases
arising in subordinate courts. Thus, decisions of Supreme Court are binding upon
all the courts of India and decisions of the High Courts are binding upon the
subordinate courts. The Muslim Law has been supplemented on many points by
the judicial decisions. On some points judicial ~ecisions have modified the pure
~im law. Thus, under the pure Muslim law, no interest is allowed on a loan.
Btrt1n Hammeera Bibi v. Zubaida •Bibi, 14 the Privy Council allowed interest
on the amount of unpaid dower.

14. Hamtem Bibi v. Zubaida Bibi, (1916) 431.A. 294.

>
 30 MOHAMMEDAN LAW

3. Le!gi , lation.-In India, Muslims arc also governed by the various

legislations passed either by the ParJiament or by State Legislature. The
following arc the instances of the legislation in India. The Uo;urious Loans Act
1918, Religious Toleration Act, Preedom of Religion Act, 1850, the Guardj~
and Wards Act, 1890, the Mussalman Wakf Validating Act, 1913, the
Mussalman Wakf Validating Act, 1930, Wakf Act, 19~, the ?1ild Marriage
Restraint Act, 1929, the Shariat Act, 1937, and the Dissolution of Muslim
Marriage Act, 1939, the Indian Contract Act, 1872. have considerably affected,
supplemented and modified the Muslim Law. In 1986 a~ Act i.t. ,
Muslim Woman (Protection of Rights on Divorce) Act, 1986 to provide separate
law in respect of divorced Muslim women was enacted by the Indian
Parliament.
4. Justice, equity and good conscience.-Under Muslim Law p~ciples of
justice, equity and good conscience can also be regarded as one of the source. Abu
Hanifa, the founder of the Hanafi sect of Sunnis, expounded the principle that
the rule of law based on analogy could be set aside at the option of the Judge on
a liberal construction or juristic preference to meet the requirements of a
.,,, particular case These principles of Muslim Law are known as Istiltsan or
I
. \,
'
"juristk equity". With regard to the Muslim Law, Their Lordships of the Privy
i; Council observed as follows :
,1,, "The Chapter on the duties (Ad:zb) of the Qazi in the principal works
I •
on Musalman Law clearly shows that the rules of equity and equitable
l
I considerations commonly recognised in the Courts of Chancery in England,
are not foreign to the Musalman system, but are in fact often referred to and
invoked in the adjudication of cases."
lstihsan-Its Meaning.- J$tihsan literally means approbation and may be
translated as "liberal construction" or "juristic preference". This term was used
by the great Jurist Abu Hanifa to express the liberty that he assumed of laying
down the law, which in his discretion, the special circumstances required,
rather than law which analogy indicated. But it was objected to not only as it
left a great deal of discretion in the exposition of the law, but what was far
more important in the eyes of the Muslims, it applied to the law a test not
referable to the Quran and_religion, but to external circumstances independent
of ls!am. The use of istihsan was _not accepted by the colleagues' of Abu Hanifa,
Malika-Ib~-Ana_s felt the necessity of some surer test for the development of
law on right Imes but he considered that the introduction of Istihsan as
reco~~nded by Abu Hanifa was open to grave objections. With the aim of
;,econk71hng these two opposing factors he proposed the use of IstislaJz ,· e
see mg peace" " d· " · .,
anal b or amen mg · Imam Malik laid down that ordinarily
it ap;~:~!~ a er~: :~a;s by which the la~ should be made to expand, but if
Istislah or "amendment" c;te~dbb analogy is opposed to general utility, then
the doctrine of lstislah ( s ~f e resorted to. IS !h~s Imam Malik invented
equity) and followed it upp; ~~!o_od) a process _s1~ul~r. or Istihsan Quristic
as Istid/a/. The developme~t of ::,ctbmeth~d of JUrIStic mterpretation known
1 Y 1stzslalz and Istid/a/ represents the
15. Principles of Mohammedan Law by Tyabji, p. 21.

L
 SOURCES OF MUSLIM LAW 31

period of juristic equity in Muslim Jaw. 16 The importance of justice, equity and
good conscience as a source of Muslim law can be well assessed by the following
observation of Ameer Ali; he says that "when the great expounders of
Musalman Law have enunciated divergent doctrines or expressed different
opinions, the Judge administering Musalman Law is to adopt the one most
conformable to equity and the requirements of the times. 17 11

III. Sources of law according to Shias.-The following are the sources of

law according to Shias : ·
I . The Quran; 2. Ahadis; and 3. The Jjma.
Like the Sunnis, the Shias also hold the Quran as the first and foremost
source of Muslim Law, the difference between them is due to the fact that they
differ in its interpretations, the Shias hold only those A/zadis as authentic
which crune down from the Prophet or his family members and are very strict
in this respect, and, therefore, the Slzias have got very few Ahadis. In the
absence of the first two sources of law the Slzias take recourse to the Ijma and
particularly when the Imam could not be consulted. Slzias do not accept Qiyas
as a valid source of law.
IV. Source of Hindu Law and Muslim Law-Compared.-It is interesting to
note that just as, under the Muslim Law, there are four primary sources, original
Hindu Law also recognises four sources of law : (i) the Shruti; (iz) the Smritis;
(iii) the conduct of the virtuous; and (iv) one's own conscience. In the case of
Hindu Law, the last two sources receded into the background; but in the case of
Muslim Law aII the four (Quran, Sunna, Ijma, and Qiyas) survive till today
with the same force and vigousr. Both Hindu and Muslim laws claim
transcendental origin and recognise king only ~s a magisterial officer and not as
a legislative head. The first source in both the systems is supposed to be a
direct revelation from God, in both, sense and language. According to the Hindu
Law, Dharma includes not only law in the modern sense of the term but also all
rules of proper and right conduct. Similarly the Shariat besides containing the
fundamentals of Muslim Law also covers a great deal of extraneous matter not
strictly germane to law. The difference between the two lies on the point that
while Muslim Law claims on historical personage, i.e., Prophet Mohammad, as
its founder, no such claim is made by Hindu Law.

.16. Anglo-Muslim Law by Mohammad-Ullah Ibn, S. Jung. p. xiv.

17. Preface to the Thi.r d Edition of Mohammedan Law by Ameer Ali, p. 7.