Sources of Muslim Law

Primary Sources

1. The Quran

The word Quran 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 embodies the very words of God as they were communicated to the Prophet. The Quran 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.

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 very structure of Islam rests. Quran regulates individual, social, secular and spiritual life of the Muslims.

(b) It contains 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 social reforms, such as raising the legal status of women and equitable division of the matters of inheritance and succession.

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 composed 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 mean time 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 Prophet were inspired by God. During his lifetime, the Prophet pronounced his verdicts, did certain things and also allowed tacitly the doing of certain things permitted by Islam..

Kinds of Traditions- The Traditions are of two kinds ;-

1. Sunnat

2. Ahadis

3. The Ijma (consensus of opinion)

Ijma 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.

4. The Qiyas (Analogical deductions)

This is the last primary source of Muslim Law. Qiyas means reasoning by analogy from the above three sources, i.e., the Quran, the Sunnat and the lima. In Qiyas rules are deduced by the exercise of reason. 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.

Secondary Sources

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.

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 speaking, 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 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.

3. Legislation

In India, Muslims are also governed by the various legislations passed either by the Parliament or by State Legislature. The following are the instances of the legislation in India. The Freedom of Religion Act, 1850, the Guardians and Wards Act, 1890, the Mussalman Wakf Validating Act, 1913, the Mussalman Wakf Validating Act, 1930, Wakf Act, 1954, the Child Marriage Restraint Act, 1929, the Shariat Act, 1937, the Dissolution of Muslim Marriage Act, 1939, and the Indian Contract Act, 1872, have considerably affected, supplemented and modified the Muslim Law. Muslim Women (Protection of Rights on Divorce) Act, 1986, the Wakf Act, 1995, the ‘Waqf (Amendment) Act, 2013, the Prohibition of Child Marriage Act, 2006 and the Muslim Women (Protection of Rights on Marriage) Act, 2019 are some of the recent legislations passed by the Parliament to govern various aspects of life of a Muslim in India.

4. Justice, equity and good conscience

Under Muslim Law principles 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 lstihsan or “juristic equity”.