Origin of Muslim law

The place of Muslim Law’s origin is Arabia where Mohammad promulgated Islam. Basically it is of divine origin, that is to say, Muslim Law originates from divinity. It is that law which is established by a communication (Khliab) from God with reference to men’s acts, expressive either of demand or indifference on his part or being merely declaratory. The entire system of Muslim Law, as well as of theology, ritual, and private ethics, has been built upon two foundations-the Quran and the ‘Traditions’ (Sunnah and Ahadis).

The Quran

The Quran which is the divine communication and revelation to the Prophet of Islam, was the first and the great legislative Code of Islam. “It professes to report verbatim a series of communications made to the Prophet through the angel Gabriel, on a great number of different occasions during the last twenty years of his life and the fiction, is so strictly kept up that he is addressed throughout in the second person”.

Traditions-(‘Sunnah’ and ‘Ahadis’)

With the death of the Prophet, the living source of inspiration came to an end. The immediate successors of the Prophet in the religious and secular leadership of Islam had no claim to inspiration. They accepted the “Book of God” as an all sufficient guide for this world. It was reverently remembered, recited, written down, studied and obeyed. The conquest of the world outside Arabia brought Muslims to face with the new problems. These were solved by a process of “interpretation” which in the case of the “companions” who had shared the Prophet’s public and private life, was invested with peculiar authority. But the companions were able to supplement the explicit injunctions of the Quran with facts from the life of the

Prophet and memories of the saying of the Prophet. But there are varying texts of the traditions (Hadis) regarding the Prophet’s sayings and doings and when we come to their application, distinct schools of law emerged, each with its own charaeterstics. Thus after Mohammad’s death, the Sunnah and Hadis, though root recorded, were acted upon by his surviving companions in order to decide occasional disputes and to restrain men from certain actions which the Prophet ptohibited.

Shariat

The term 'Shariat' literally means “the path to be followed”. Quran, Hadis, Sunna, Ijma and Qiyas form the body of Muslim common law known as Shariat. It is used to denote the whole of Muslim religious law. It embraces in its orbit all human acts. “It is not law in the modem sense, but contains an infallible guide to ethics.

Religious injunctions

There are five kinds of religious injunctions under ‘Shariat’ and they are :-

1. Farz, or duties which are strictly enjoined on Muslim e.g., five daily prayers are Farz.

2. Haram, or acts which are strictly forbidden to the Muslims e.g., wine is Haram.

3. Mundub, or the things which the Muslims are advised to do e.g., additional prayers on Eid are mandub.

4. Makruh, or the things about which the Muslims are advised not to do, e.g., certain kinds of fiqh are makruh.

5. Jaiz, or the things about which Islam is indifferent, e.g., travelling on sea or air is Jaiz.

Fiqh

Fiqh is the name given to the whole science of jurisprudence because it implies the exercise of intelligence in deciding a point of law in the absence of a binding command from the Quran or a tradition on the point. Fiqh literally means “intelligence”. Fyzee defines it as the “knowledge of one’s rights and obligations derived from the Quran or the Sunna of the Prophet, or the consensus of opinion among the learned (ljma), or analogical deduction .