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Sources Of Muslim Law

Muslim law is a personal law which is applied only on Muslims. It is applied by courts in India to mohamedans not in all, but in some matters only. Muslin law in India means that portion of Islamic civil law which is applied to Muslims as a personal 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.

The origin of Muslim law is Arabia where Mohammad enunciated Islam. The object of Islam is to create a sense of obedience and submission to Allah. His ordinances and thereby to walk on right path. Those who follow this path are Muslim. 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
Sources of Muslim law is classify into two categories that is primary sources and secondary sources.

Primary 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:

  • Quran
  • Sunnat
  • Ijma
  • Qiyas


1. Quran

Muslim law is founded upon Al-Quran which is believed by the muslamans 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 owes 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:

1. Sunnat
2. 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.

Kinds Of Ijma

Ijma is of three kinds:

  • Ijma of the companions of the prophet – is the consensual opinion of companion which is universally acceptable, throughout the Muslim world and is unrepealable.
  • 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.
  • 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:

  • The original source from which Qiyas is deduced must be capable of being extended, that is it should not be of any special nature.
  • The original order of the Quran or hadith to which the process of Qiyas is applied should not have been abrogated or repealed.
  • The result of Qiyas should not be inconsistent with any other verse of Quran or any established Sunna.
  • Qiyas should be applied to ascertain a point of law and not to determine the meanings of words used.
  • 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
These sources are not basic sources of Muslim law but the supplementary sources of Muslim law. The secondary sources of Muslim law are:

  • Urf or Custom
  • Judicial decision
  • Legislation
  • Equity, Justice, & Good conscience


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:

  1. agricultural land;
  2. testamentary succession among certain communities; and
  3.  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:

 

  1. A number of texts, particularly traditions are based upon usages.
  2. A part of the shariah based upon tacit or silent approval of the prophet comprises many of Arab customs.
  3. 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.

Legislation

In India, Muslims are also governed by the various legislation passed either by the parliament or by state legislature. The following are the examples of legislation in India.

  • The usurious loans act, 1918
  • Religious toleration act
  • Freedom of religion act, 1850
  • The mussalman wakf validating act, 1930
  • The shariat act, 1937
  • Dissolution of Muslim marriage act, 1939

These acts have considerably affected, supplemented and modified the Muslim law. In 1986 an act i.e. Muslim Woman (Protection of Rights on Divorce) Act, 1986 to provide separate law in respect of divorced Muslim women was enacted by Indian parliament. According to the need of time and circumstances Indian legislature enacted the law to fulfill the need.

Conclusion
These four sources namely Quran, Sunna, Ijma and Qiyas are the primary sources of law. Muslim law mainly based on verses of Quran and practices of hadith. There is secondary source of Muslim law which subsequent of it. Sects of shias does not accept the Qiyas as source of Muslim law. It is due to the contribution of all that an orderly and systematic theory of personal laws of Islam came into existence which govers the Muslim community.

References:

  1. Mohammedan Law By Aqil Ahmad, 25th Edition 2013
  2. Muslim Law By Syed Khalid Rashid, 3rd Edition
  3. Muslim Law By M.A. Qureshi, Edition 2002
  4. Principles Of Mohammadan Law By Mulla

Written By: Kirti Pamar  

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