Sources of Muslim Law

Muslim law is believed to have been derived from the divine. Muslim law in India is considered as that portion of the Islamic law that is applicable as personal law to Muslims (though not in all matters).

8 Sources of Muslim Law

The sources of Muslim law are classified into two major heads:

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A. Primary sources

1. The Quran – the book of Allah
2. The Sunnat
3. Ijma
4. Qiyas

B. Secondary sources

5. Customs
6. Judicial Decisions
7. Legislation
8. Justice Equity and Good Conscience

A. Primary Sources

1. The Quran – the book of Allah

Quran is the supreme source of Muslim law as it is believed to contain the verses of God himself. It consists of philosophical laws, code, conduct and punishment, which regulates the social, secular and spiritual life of the Muslims. Quran consists of 114 chapters and 6236 ayats.

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2. The Sunnat

Sunnat refers to traditions. It includes the Prophet’s modal behaviour, the procedure that was followed by the Prophet, his way of action, whatever were the actions of the Prophet, his sayings, and his doings. All these are considered traditions. Sunnat has been classified as:

  • Sunnat-ul-fail: Practices done by the Prophet himself.
  • Sunnat-ul-qual: Practices which the Prophet enjoined (instruct or urge to do something) by words.
  • Sunnat-ul-tuquir: Practices that were done in his presence without his disapproval.

3. Ijma

Ijma is the approved and agreed opinion of Muslim jurists. According to Sir Abdul Rahim, Ijma is the agreement of the jurists among the followers of Prophet Mohammad in the particular question of law. These are the different kinds of Ijma:

  • Ijma of companions of the Prophet- universally acceptable.
  • Ijma of jurist- best after Ijma of companions.
  • Ijma of people- not of much importance.

4. Qiyas

Qiyas is the analogy from the Quran, the Sunnat and the Ijma. Qiyas doesn’t purport to create new law but applies the old principles to the new circumstances.

B. Secondary Sources

5. Customs

These are termed as urf in Muslim law. It was never recognized as a source of law but was sometimes considered supplementary. Not every custom holds importance in Muslim law.

Requisites of valid customs under Muslim law are:

  • It must be ancient.
  • It must be territorial.
  • It must be continuous.
  • It must not oppose the public policy.
  • It must not oppose the Quran or Ijma.

6. Judicial Decisions

It includes the decisions given by the Privy Council, the Supreme Court and the High Courts of India. It acts as precedents for future cases. Judicial decisions are supplementary to Muslim law. To some extent, judicial decisions have modified Muslim law. For instance, in Shayara Bano vs Union of India, the Triple Talaq practise was held unconstitutional, being arbitrary in nature.

7. Legislation

Muslims are governed by various legislations passed by many legislatures, which have considerably supplemented the Muslim law. Some of them are:

8. Justice Equity and Good Conscience

It refers to as ‘istihsan’ in Muslim law, which means juristic equity (or juristic discretion). According to Abu Hanifa, the man has been endowed with intelligence to use his common sense to do what he thinks fit. Several portions of Muslim law have been modified so as to meet the changing conditions in India.

Here is a different take on Sources of Muslim Law by another author (Dinky).

The essence of Mahomedanism (Islam: Peace) consists of the faith that there is only one God and that Mohammed is his Prophet. A person becomes a Mahomedan, usually by birth to parents professing Mahomedanism. A person belonging to another faith may also convert to Mahomedanism.

Sources of Muslim Law:
(a) The Quran;
(b) Sunna;
(c) Ijmaa; and
(d) Qaiyas.

(a) The Quran

The Quran is the main and primary source of Muslim Law. It is the scripture of the Muslims and is of divine origin. It contains 6000 plus verses revealed to the Prophet by the angel Gabriel as the message of God. This revelation was spread over several years, and the first Wahi or message was received in the 40th year of the Prophet. About 80 verses of the Quran deal with legal matters such as inheritance, guardianship, marriage, divorce, the prohibition of usury etc. The Quran represents the voice of God, and thus its authority is supreme.

usury: the action or practice of lending money at unreasonably high rates of interest.

Post-death of the Prophet, during the third Caliph, the authentic factual version of the Quran was composed, and all other versions were destroyed. The scribe, whom the Prophet himself had employed during the Prophet’s lifetime, assisted the third Caliph in preparing the standard text.

(b) Sunna (Tradition)

Sunna consists of the precedents or usage of the Prophet. The mystic, spiritual pronouncements made by the Prophet are the interpreted foundation of Sunna, which deals with the fundamental essence of the Islamic religion contrasting with the positive law. Since Sunna bears a divine insight, it is spiritually designated equivalent to the Quran.

(c) Ijmaa

Ijmaa is the consensus of the jurists. The aim of the law is to satisfy the needs and requirements of society. There is a Hadia of the Prophet to the effect: “God will not allow his chosen people to agree on an error”. The effectiveness of Ijmaa is based on this text. Ijmaa has validity so long as it is not opposed to the Quran or the Sunna.

(d) Qiyas

Qiyas is an analogical deduction from a comparison of the other three sources. The authority of Qiyas as a source of law also rests on the Hadis of the Prophet. The Prophet questioned Yemen’s Chief Justice as to how he would decide if there was no guidance on a particular point from the Quran or Sunna. The Chief Justice replied that he would proceed by analogy using his own reason in such a case. The Prophet approved this. The Shias, one of the sects of Mahomedans, do not accept the binding authority of Qiyas as a source of Muslim law.

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