SOURCES OF MUSLIM LAW

Both Hindu and Muslim Laws are based on revelation. Revealed law, also called divine positive law, it is the sum total of all the prescriptions that God has communicated to the human race by way of supernatural revelation. The Muslim Law in India is derived from various sources. They can be broadly classified as: 1. Classical Sources 2. Modern Sources Origins In pre-Islamic Arabia, bonds of common ancestry formed the basis for tribal association.[59] The advent of Islam brought the tribes together under a single religion. As Islam is not just a religion, but also a complete way of life, a new common basis of law and personal behavior (Sharia) began to take shape. Shar ah (Arabic: "way" or "path") is the code of conduct or religious law of Islam. Most Muslims believe Sharia is derived from two primary sources of Islamic law: the words of Allah as revealed in the Qur'an, and the example set by the Islamic Prophet Muhammad (570) in the Sunnah. Sharia branches out into Fiqh and Qanun respectively. Fiqh, or "jurisprudence", is defined as the knowledge of the practical rules of the religion. The method Islamic jurists use to derive rulings is known as usul al-fiqh ("legal theory", or "principles of jurisprudence"). According to Islamic legal theory, law has four fundamental roots, which are given precedence in this order: the Qur'an, the Sunnah (actions and sayings of Muhammad), the consensus of the Muslim jurists (ijma), and analogical reasoning (qiyas). For early Islamic jurists, theory was less important than pragmatic application of the law. The Fiqh deals only partially with of Muslim Law deals prevalent in India . The limitation arises due to the reason that some parts of the Fiqh does not comply with the Indian Penal Act, which is equal for Hindus and Muslim alike, irrespective of the religion.

CLASSICAL SOURCES The classical sources are further classified into two categories:

There are 6237 ayats in 114 chapters. It was in middle age that the first revelation (Wahi) came to the Prophet in 609 A.The Quran comprises of 114 chapters. After the Prophet¶s death. The revelations collected and organized. for about 23 years. assembled and then systematically presented under the authority of the third Caliph. After These delivered messages were remembered and some were reduced to writings on animal skin. In some places in the book. Koran : The term ³Quran´ has its roots in the Arabic word µQurra¶ and refers to µthe reading¶ or µwhat ought to be read¶. 3) Structure: It is in form of verses. Osman. and accounts of his life eventually formed the basis for the Sunnah. surat-ul-noor (rules relating to home-life) and surat-ul-talaq (the rules relating to divorce). they were destroyed or suppressed .but as they were considered unauthentic . Umme Hafsa . revealed during Md¶s stay in Medina). 570 CE in Mecca. They continued until death. all three can¶t be separated at all. the one that shows the truth from falsehood and the right from the wrong. Prophet Muhammad. out of which 92 chapters are on conduct(Fiqh. a trading city in the Arabian desert. The first chapter praises the almighty God. The Quran is the Al-furqan.A. revealed during Md¶s stay in Mecca) and the rest on law(qanun. 1) Divine Origin: The religious book has a divine origin. Thus. The first version is said to have been in the custody of the Prophet¶s wife and Osman¶ daughter. each verse is called an µAyat¶.D as messages of God made by Angel Gabriel. There were other versions. Thus. it is unchangeable and its authority is beyond reproach. These revelations were given out then through the preaching of the Prophet to the followers. It is ultimate source of laws. is the Qur'an. instead we refer to the 200 odd law-making ayats scattered all over the book as the basic source of Muslim Law. 2) First Source: It is the first and fundamental source of Muslim law and Islamic principles. etc. theses were collected. Other chapters include. The holy book is arranged topic wise with respective titles. 4) Mixture of religion. each called µSura¶. It is believed that these were the words of God himself and the Prophet mere uttered these words. PRIMARY B. too. SECONDARY PRIMARY CATEGORY: Primary Classical sources are derived from the following 1. the whole of Quran cannot be source of a law. . Muhammad was born ca. palm leaves. law and morality: It is believed that the verses relating to law were revealed at Medina while the ones relating to religion and mortality were revealed at Mecca. surat-un-nisa (chapter relating to women).

The competence was judged by the mental understanding. Thus. . It means that whatever the Prophet said or did without the reference to God is his tradition. i) ii) iii) Sunnat-ul-Qaul: refers the words spoken by the Prophet. With the spread of Islam. The Prophets acts and words are believed to have been inspired by God and thus are treated as internal revelations. the Quran is silent. Allah is supreme law giver. Sunna literally means the ³ trodden path´. Ques.Sunna In the pre-Islam Arabia. even the courts of law have no authority to change the apparent meaning of the verses as it does not have an earthly origin. on many an issue. Hence. we say that it is not a complete code of Muslim personal law. practices and questions. iii) Sunnat-ul-Taqrir: by his silence. thus. NARRATORS OF THE TRADITIONS The traditions noticed by competent and qualified person were treated as authoritative if they were found to be reliable. Sunna or Ahadis means the traditions of the Prophet. righteous conduct of a person and on the basis of whether he was a Muslim or not. only 80 or so deal with the personal law. While the latter is a story or occurrence of an incident. the necessity arose to explain and supplement the Quran so as to deal with the new problems of a growing Islamic society. power of retention. it only lays down the basic principles. the Prophet gave an implied approval to pre-islamic customs. 7) Incompleteness: In the 200 odd verses of law in the Quran. Explain. 6) Unchangeable: The Quran can be in no way altered or changed. Sunna meant an ancient and continuous usage that has been established in the society. Sunna must be differentiated from Hadith. 2. the Sunna /Ahadis were referred to. gambling etc. So wherever the Quran is silent. sunna refers to the law that was derived of such conduct of the Prophet. ii) Sunnat-ul-Fail: includes the conduct and behaviour of the Prophet. tradition is another source of law in the language of the Prophet. and the ones that create specifics so as to solve daily life legal problems as well as providing for the basis of juristic interpretations or inferences. WHAT CONSTITUTED SUNNA OR AHADIS? Everything the Prophet did or said as well as his silence was taken to be a rule under authority except when he used to give the revelations of God. the ones that remove social evils like child infanticide. Further.5) Different forms of legal rules: It has many categories.

The further a narrator from the Prophet. Ijma is the unanimous decision of jurists for a particular question with reference to that age or communal legislation. All sects of Islam follow them. for example. Traditions derive authority from the writers.000 traditions collected and written in it. DRAWBACKS Some of the traditions have a doubtful origin and some are even contradictory to each other. They stand second in reliability. the Shias followed only those traditions that came from the Prophet¶s family. The number of traditions is staggering. Masnad has about 80.IJMA: UNANIMOUS DECISIONS OF THE JURISTS) Ijma means the opinion of the learned. Successors of successors: The Muslims who were in constant companionship of the Successors come last in the line. Traditions were passed on from generation to generation and soon became the practice. KINDS OF TRADITION i) Ahadis-i-Mutwatir are the universally accepted traditions. When persons knowledgeable in law would agree upon a point. Muvatta is regarded the first systematic collection even though a few efforts were made before. It is through . 3.I) II) III) Companions of the Prophet: The Muslims who lived with the Prophet during his lifetime and were close to him are called the Companions. It is the source of law for a majority and not all. There are no uniform or certain rules on certain issues. this means could no longer be practised. ii) Ahadis-i-Mashoor are the popular traditions which were narrated by the companions of the Prophet and have found mass acceptance. Mixture of law and religious or moral principles makes the extraction of the actual law a rather tedious task. In addition. iii) Ahadis-i-Ahad are the isolated traditions that have not been followed regularly or by many. Thus. The importance and role of traditions is immense but another source of law was needed to deal with the expanding Islamic Society. such consensual opinion was referred to as Ijma. Their testimonies are the most reliable ones. Successors of the Companions: The Muslims who came in contact with the Companions of the Prophet are called the Successors. the lesser authority is given to his narration. There is no doubt as to their certainty and have been narrated by many people. with the death of successors and others. the acceptance and practice is a localised one. They were not written or systematically arranged initially. Generally.

The Ijma of the jurists and the people could be overruled at any time. . To be a jurist or Mujtahid. It was through Ijma that the real opportunities for interpretation of the hereto rigid Quran and Traditions came up. It cannot be overruled or modified by subsequent Ijmas. the jurists used to give a consensual opinion so as to enable a solution. thus.established communication network. DEFECTS The Ijma lead to various reading and versions or interpretation of the Quran. they were not able to contribute substantially to certainty in law. the Ijma had to be abandoned. interest of the community and equity. The Prophet is believed to have said that. Sunna. obtaining consensus of all the jurists was a major problem. It explained the Quran and traditions in terms of actual applicability as well as laid down new principles of law so as to help the society to cope up with growth and progress. The choice of unanimous opinion or majority opinion is another bone of contention. it is of little consequence with respect to core issues and principles of the Islam. different sub-sects were formed. the mass acceptance of a principle as law was also accepted. iii) Ijma of the People: At times. As can be seen. Again the stock of learned and accepted scholars ran short of the requirement and by 10th century. ii) Ijma of the Jurists: the opinion of learned scholars was believed to be the next best Ijma after the Ijma of the Companions. It is even referred to as the µliving tradition¶ at times. The Hanafi doctrine of law changing along with times found support in the Maliki view that new facts require new decisions. Ijtihad refers to the process of creating law through consensus on the basis of µexercise of one¶s reasoning so as to create a new rule of law¶. The Mujtahtids are the recognised interpreters of law.the tradition of the Prophet that Ijma derives its validity and authority as a source of law. Nevertheless. The Ijma had to be justified with references to the principles given in the Quran or the tradition as well as public policy. custom etc. As a result. µGod will not allow his people to agree on an error¶. IMPORTANCE A major chunk of the fiqh or actual Muslim law came through Ijma. FORMATION OF IJMA Whenever law needed a new principle. it was essential that a person was a Muslim with adequate knowledge of law and was competent to form logical deducements. With the spread of Islam and lack of a well. KINDS OF IJMA i) Ijma of the Companions: the consensual opinion of the Companions is believed to be most authoritative and accurate. the authority of Ijma depends upon the capabilities of the people participating in its formation.

But it is more important and powerful than a mere rai or opinion of a jurist. a process of seeking guidance from the source. First. Then solution to the present problem is directly deduced from the texts in form of a law derived. ISTIHSAN: Istihsan means juristic equity. rulings can be pronounced in accordance with the "underlying meaning of the revealed text in the light of public interest". it is a method of comparing a problem in present times to a similar problem for which the solution is provided in the texts. Some have described it as the analogical deduction from the reason of a text to a case not actually covered by its language. In this case. Here only an inference is drawn and analogy is not established. In this case the jurists uses his wisdom to pursue public interest. It also refers to comparing a thing in relation to a standard or µto establish an analogy¶. the outcome that is more beneficial out of the 2 is accepted. he developed a tertiary source of legislation. In simple words. the spirit or the implied meaning of the text is taken into consideration. SECONDARY CLASSICAL SOURCES : Secondary Classical Sources are derived from the following: 1.4. a similar problem with a solution is found and the reasoning behind it was taken so as to establish a common cause. Traditions or Ijma. then aql or . thus.[22] Shi'ite jurists maintain that if a solution to a problem can not be found from the primary sources. ISTISLAH: Public good Imam Malik developed a tertiary source called al-maslaha al-mursalah. It is recognised only under Hanafi Law. This rule of interpretation is accepted only in Maliki and Shafei schools. Similar to Abu Hanifa and Imam Malik. Istidlal allowed the jurists to avoid "strict analogy" in a case where no clear precedent could be found. This source is rejected by the Shafi'is. it is a conclusion of law based on the jurist¶s sense of justice or equity rather than any text. Here. one¶s own exertions to find a solution through reason.QIYAS:ANALOGICAL DEDUCTION Qiyas refers to µmeasurement¶ in the Arabic language. public interest was distinguished as a basis for legislation. According to this source of Islamic law. 2. It is a weak Ijtihad. ISTIDLAL Istidlal refers to inferring one thing from another. which means social benefit. Textual indicationShafi'i accepted cases in which he had to be more flexible with the application of Qisas. The only requirements are that the person deducing is a Mujtahid and he deduces the law from a text of Quran.In case of 2 possible juristic outcome. Unanimous consensus between those deducting was not essential. The Shafi'i school adopted istidlal.

and Bukhara) had fallen into the hands of the Mongols. some customs survived due to their incorporation in the Ijma. the "doors to ijtihad".[28] Later in Sunni history. still continues. however.[29] A lawyer who is qualified to use this source is called a mujtahid. were closed. or "renewer of religion. The first is the expression of the connection existing between one proposition and another without any specific effective cause. The final type of istidlal is the authority as to the revealed laws previous to Islam.[28] 3. For example. Scholars divide istdilal into three types.reason should be given free rein to deduce a proper response from the primary sources. Next. Muhammad asked the former how he would give judgments. istidlal could mean presumption that a state of things. The reason for this was that centers of Islamic learning (such as Baghdad. All mujtahid exercise at the same time the powers of a mufti and can give fatwa. Some customs. during a conversation with Mu' dh ibn Jabal. 728/1328). Muhammad approved of this. ijtihad was replaced by taqlid or the acceptance of doctrines developed previously. were continued due to the Prophet¶s silent approval. For example the Shia Sect doesn¶t recognise the Qiyas as a source of law but recognising traditions of the Prophet¶s family only along with the conduct of the Imams. Nishapur. Shi'ite jurists maintain that qiyas is a specific type of ijtihad. Thus. Some were even included in his traditions. 595/1198)." Such persons are thought to appear in every century. They. announced an end to its practice during the thirteenth century. however. Otherwise. as they were un-Islamic and bad. then to the Sunnah and finally commit to ijtihad to make his own judgment. NOTE: There exist differences in all schools and sects regarding the Primary sources. holds that both qiyas and ijtihad are the same. when applied is called ijtihad (literally meaning "exerting oneself"). The Sunni Shafi' school of thought.[28] There are many justifications. 1. . The process. for the use of ijtihad. another was Ibn Rus h d (Averroes d. Then the Prophet abolished most of them. In Shi'ite Islam they are regarded as the spokespersons of the hidden Imam. One was Ibn Taymiyya (d. whereby rational efforts are made by the jurist to arrive at an appropriate ruling. Some mujtahid have claimed to be muj addid. customary law governed Arabia. URF OR TAAMUL: CUSTOM Before Islam. found in the Qur'an and sunnah. thus. Fatwas are not a source of law but they have contributed a fair bit in the improvement and expansion of law 2.[27] Sunni jurists accepted ijtihad as a mechanism for deducing rulings. however. Mu' dh replied that he would refer first to the Qur'an. there were notable instances of jurists using reason to re-derive law from the first principles.[27] In Sunni Islam. which is not proved to have ceased. The founders of the Sunni madhabs (schools of law) were considered such lawyers. however.

the Shariat Act is not applicable to the state of Jammu and Kashmir. the rules of Muslim law there are subjected to customs and usages. Even in matters of wills. 1939 ± It provided rights to judicial divorce under the grounds mentioned in it to women who traditionally had no independent right to seek divorce. 1937 ± It reiterated the Muslim Stand that custom couldn¶t be an independent source of Muslim law all the time d) Dissolution of Muslim Marriage Act.IMPORTANCE It is not a formal source. Some lay down the procedure rather than altering substantive rules of Muslim personal Law. 1986 ± The issues of maintenance after divorce. 1937 has abolished most of the customs. b) The Child Marriage Restraint Act. 1942. 1913 ± It merely re-established the validity of family-wakfs. sometimes. yet. 1850 changed the laws of the pre-existing rights . maintenance wherein customs and usages cannot be applied anymore. LEGISLATIONS: God is the Supreme legislator as per Islam.It makes the marriage of a boy under 21 years of age and a girl under 18 years a µchild marriage¶ and punishable without affecting the validity of it. charities and religious endowments. there are a few acts that modify or lay down principles of Muslim law and serve as a source of law for the courts with respect to the content covered by them. Acts like the following replaced or restricted the application of those personal law principles with reference to the Act¶s objectives and aims: a) The Caste Disabilities Removal Act. divorce.Additionally. maintenance during idddat are dealt with comprehensively. the customary law will apply unless a Muslim expressly states that the Shariat should regulate them. Section 2 lists ten matters including inheritance. e) Muslim Women (protection of Rights on Divorce) Act. Customs are still applicable to Muslims with regard to agricultural lands. a) The Mussalman Waqf Validating Act. f) Punjab and Haryana¶s Muslim in Muslim Shrine¶s Act. wakf and. PRESENT POSITION :The Shariat act. The British Courts in India held that a custom would prevail over a written text provided that the custom was ancient and invariable. in the absence of rule of law in the texts of the primary sources. There are other Acts too which deal with Muslim personal Law. Thus. marriage. MODERN SOURCES 1. the customary practices are regarded as law. legislative modifications are also treated as encroachment. c) The Muslim Personal Law (Shariat) Application Act. Thus. Still. adoption and legacies.

and was the work of many scholars. legislations have overruled or negated the rules. Plus the judgements of the higher court become the law of the land and thus are binding on all the lower courts. 1961 Similarly.[1][2] In order to compile it Aurangzeb gathered 500 fuqaha. and d) The Dowries Prohibition Act. This is called the principle of Precedents. . These cases continue to have a binding force on all the High courts and the lower courts of India and a persuasive value in the Supreme Court of India. It does not matter whether the persons getting married under this law are from the same religion or sect or not. Elsewhere. For example. Judgements of a superior Court are an authority for the lower courts.of converts. b) The Indian Evidence Act. The Fatawa-e-Alamgiri is notable for several reasons: a. It spanned 30 volumes b. Fatawa-e-Alamgiri (also known as Fatawa-i-Hindiya in Turkey. 1925. principally from the Hanafi school. JUDICIAL DECISIONS: The Privy Council decided many a case related to Muslim law. 1875 differed on its definition of majority. 1872 changes the traditional outlook on legitimacy via Section 112. This compilation is based on Sunni Islam's Sharia law. alternate legislation available to all religions have made its impact felt on the Muslim personal law. 300 from the Indian subcontinent. It served as the basis of law and doctrine imposed by Aurangzeb throughout his empire. a couple that marries under the Special Marriage Act. This box of precedents will lose its binding force only if the Supreme Court overrules a particular decision. Egypt and Syria) is a compilation of law created at instance of the Mughal Emperor Aurangzeb (who was also known as 'Alamgir'). 3. additional grounds of dissolution of marriage and even interest on unpaid dower are few of the fields where courts have stepped in with new interpretations or discretion on the basis of justice. 1954 will be regulated by this Act for matters concerning the martial life and not by the personal laws of the party. an opinion seems to be forming that judges are now making the law the way the early Muslim jurists did. they are still a source of law. 100 from Iraq and 100 from the Hejaz. The inheritance and intestate succession of the spouse or heirs will also be governed under the Indian Succession Act. 2. validity of gifts to minor wife. c) The Indian Majority Act. Many a times. Law of pre-emption. equity and good conscience to develop the law further.

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