SOURCES OF MUSLIM LAW

Muslim law is the body of law which is derived from the Quran and other recorded saying of
the Muslims prophet Muhammad. However Islamic law talked about man's duties rather than
his rights. In the religious sense Islam means submission to the will of God' & in secular
sense Islam means the establishment of peace.

According to Amir Ali Muslim is any person who professes the religion of Islam, in other
words accepts the unity of God and prophetic character of Mohammad. Thus, to be a Muslim
only two things is required- one is that Allah is one and the second is the prophet hood of
Mohammad. Islamic law is a branch of Muslim theology, giving practical expression to the
faith, which lays down how Muslim should conduct himself through his religion, both
towards God and towards other men*

Muslim law consists of the injunction of Quran, of the traditions introduced by the practice of
the prophet (sunna), of the common opinion of the jurists (ijma), of the analogical deductions
of these three (qiyas). Further, it has been supplemented by the juristic preference (Istihsan),
public policy (Istislah), precedent (Taqlid) and independent interpretation (Iltihad).

Sources of Muslim law

is further classified into two categories that is primary sources and secondary sources.

Primary sources are those on which Muslim law relied on. These sources are the foundation
of Muslim law. Primary sources of Muslim law are:

i. Quran
ii. Sunnat
iii. Ijma
iv. Qiyas

Secondary Sources are not basic sources of Muslim law but the supplementary sources of
Muslim law. The secondary sources of Muslim law are:

i. Urf or Custom
ii. Judicial decision
iii. Legislation
iv. Equity, Justice, & Good conscience
 PRIMARY SOURCES

1. QURAN

Muslim law is founded upon Al-Quran which is believed by the muslims to have existed from
eternity, subsisting in very essence of god. The word Quran has been derived from the Arabic
word Quarra which means to read. The Quran is, Al-furqan i.e., one showing truth from
falsehood and right from wrong. The word Quran which is the ‘divine communication' and
revelation to the prophet of Islam is the first source of Muslim law.

Quran is a primary source of Muslim law, in point of time as well as in importance. The
Islamic religion and Islamic society owe its birth to the word of Quran. It is a paramount
source of Muslim law in point of importance because it contains the very word of God and it
is foundation upon which the very structure of Islam rests Quran regulates individual; social,
secular, and spiritual life of Muslims.

It contains the very words of God as communicated to Prophet Mohammad through angel
Gabriel. It was given to the world in fragmentary forms, extending over a period of 23 years.
It originally had for its objects repealing objectionable customs, such as, usury, unlimited
polygamy and gambling, etc., and effecting social reforms, such as raising the legal status of
women and equitable division of the matters of inheritance and succession.

The Quran can be no way altered or changed, thus, even the courts of law have no authority
to change the apparent meaning of the verses as it does have an earthly origin. This view was
held in Aga Mohammad Jaffer v. Koolsom Beebee (1895). But whenever the Quran was
silent on any particular matter, guidance was taken from the ‘sunnat'.

2. SUNNAT

The word sunna means the trodden path & as this meaning shows it denotes some kind of
practices and precedent. It is belief of Muslim that revelations were two kinds- manifest
(zahir) and internal (batin). Manifest revelation is communication which is made by angel
Gabriel under the direction of god to Mohammad in the very words of god. Quran is
composed of manifest revelations.

Internal revelation is opinions of the prophet which is delivered from time to time on
questions that happened to be raised before him. Sunna means the model behavior 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 writing during lifetime of
Mohammad. They have been preserved as traditions handed down from generation to
generation by authorized persons. The importance of hadith as an important source of Muslim
law has been laid down in the Quran itself.

Kinds Of Traditions: The Traditions are of two kinds:

i. Sunnat
ii. Ahadis

These two have been classified into the following three classes on the basis of mode or
manner in which it has actually originated:

Sunnat-ul-fail i.e., Traditions about which prophet did himself.

Sunnat-ul-qaul i.e., Traditions about which he enjoined by words.

Sunnat –ul-tuqrir i.e., The things done in his presence without his disapproval.

The three class of Ahadisare:

Alhadis -i-mutwair i.e., Traditions that are of public and universal propriety and are held as
absolutely authentic. In such hadis the chain is complete.

Ahadis -i-mashhoor i.e., Traditions which known to a majority of people, do not possess the
character of universal propriety.

Ahadis-i-wahid i.e., Traditions which depend on isolated individuals.

Thus, two sources, namely, the Quran and Sunna may thus be said to form the fundamental
roots of Islamic law.

3. IJMA

It was equally binding on the people to act on a principle (not contrary to the Quran or hadis )
which had been established by agreement among highly qualified legal scholars of any
generations.

Ijma has been defined by Sir Abdul Rahim as agreement of the jurists among the followers of
Prophet Mohammad in a particular question of law. The validity of ijma, as containing a
binding precedent, is based upon a hadis of the prophet which says that god will not allow
His people to agree on an error. Ijma thus become a source of law. According to the classical
 theory, failing Quran and traditions, and consensus of opinion amongst the companions of the
prophet is recognized as the best guide of law. Thus it is the third source of law, both in point
of time and importance.

The authority of ijma as a source of Muslim law is also founded on Quranand Hadith. The
law is something living & changing. The aim of law is to fulfill the needs of the society. The
principle of ijma is based upon the text i.e. god will not allow His people to agree on an error
and whatever Muslims hold to be good is good before god. Muslims religion does not admit
the possibility of further revelation after the death of the prophet, the principle of ijma is the
only authority for legislation in the present Muslims system.

Three Kinds Of Ijma

i. Ijma of the companions of the prophet – is the consensual opinion of companion

which is universally acceptable, throughout the Muslim world and is unrepealable.
ii. Ijma of jurists- is the consensual opinion of jurists which is believed that its best ijma
after ijma of companions. All the jurists should sit together and discussed the
reasoning, and majority of the jurists is of the view that unanimity to form ijma.
iii. Ijma of the people – is the opinion of Muslim population as a whole may have any
importance but in actual practice ijma of Muslim public had no value with regard to
legal matters but in matters related to religion, prayer and other observances have
more value attached to it.
Ijma cannot be confined to any particular period or country. It is completed when the jurists,
after due deliberation, come to a finding .it cannot be questioned or challenged by any
individual jurist. Ijma of one age may be reversed or modified by the ijma of the same or
subsequent age.
4. QIYAS

This is a last primary source of Muslim law. Qiyas means reasoning by analogy from above 3
sources i.e., Quran, Sunna and Ijma. In Qiyas rules are deduced by the exercise of reason.

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 languages are governed by reason of text. Thus, it
should be noted that Qiyas does not purport to create a new law, but merely to apply old
established principles to new circumstances.
 Conditions of Validity of Qiyas:

i. The original source from which Qiyas is deduced must be capable of being extended,
that is it should not be of any special nature.
ii. The original order of the Quran or hadith to which the process of Qiyas is applied
should not have been abrogated or repealed.
iii. The result of Qiyas should not be inconsistent with any other verse of Quran or any
established Sunna.
iv. Qiyas should be applied to ascertain a point of law and not to determine the meanings
of words used.
v. The deduction must not be such as to involve a change in the law embodied in the
text.
Thus it can be said that Qiyas is weak source of law and rules analogically deduced do not
rank so high as authority, as those laid down by Quran and Hadith or by consensus of opinion
(ijma).the reason is that with respect to analogical deductions one cannot be certain that they
are what the law giver intended. Such deduction always rest upon the application of human
resources which always are liable to err.

SECONDARY SOURCES

1. URF OR CUSTOM

Before the emergence of Islam in Arabia , customs were the basis of entire social life,
religion, morality, trade and commerce. Custom has not been recognized as a source of law in
a Muslim law. However, it cannot be denied that custom has always been given a place under
Muslim law, if it is in conformity with Muslim law. For example, prophet mohammad never
repeal the whole of the pre-Islamic customary law of Arabia. In various matter of Muslim
law, custom play a significant role when the matter is relating to their:

agricultural land;

testamentary succession among certain communities; and

charities other than wakf, because these matters have not been included in the section 2
of Shariat Act,1937. Custom influenced the growth and formation of shariah in several
ways:
A number of texts, particularly traditions are based upon usages.

A part of the shariah based upon tacit or silent approval of the prophet comprises many of
Arab customs.

Imam malik says that the customary conduct of the citizen of medina was a sufficient
ijma to be relied upon in the absence of other texts.

Pre- Condition Of Valid Custom

Custom must be territorial.

It must be existing from memorable time i.e. ancient.

It must be continuous and certain and invariable.

Custom should not oppose the public policies.

Custom must not in contravention of Quran and Ijma.

Judicial Decision

These includes the decisions of privy council, the supreme court & high court of India,
Judges explain what law is. These decisions are regarded as precedents for future cases.
Judicial decision is one of the distinguish characteristic of English law. In India, the plan
of Warren Hastings of 1772 made provision that it was only judiciary which introduced
new set rules in personal laws of Hindus and Muslims.

There are number of judicial decisions which have given new dimension to Muslim law:

In Maini Bibi v. Choudhry Vakil Ahmad, the privy council held that a widow possesses
the right to retain the property of her husband till her dower money was paid

In Bai Tahira v. Ali Hussain, the Supreme Court gave a new line of approach to the law of
maintenance. The Supreme Court held that a woman will be entitled for maintenance
under section 125 of criminal procedure code even though she has received a lump-sum
amount under her customary law. A similar view also taken in Shah Bano's case.

It may be concluded therefore, that to some extent, the courts in India have tried to
modify the rules of Muslim personal law as applied in India. Unless overruled or negative
by some legislative enactment, these rules through the decisions, continue to be a source
of Muslim law.

Justice, equity and good conscience

The doctrine of equity, justice & good conscience is regarded as one of the source of
Muslim law. Abu Hanifa, the founder of hanafi sect of Sunni, expounded the principle
that 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 Istihsan or juristic equity. Istihsan literally means
approbation and may be translated as liberal construction or juristic preference.

This term was used by great jurist Abu Hanifa to express the libert that he assumed of
laying down the law, which in his discretion, the special circumstances required, rather
than law which analogy indicated. Several areas of Muslim were modified so as to meet
the changing conditions in India.