MOHAMMEDAN History

Sources
LAW/ MUSLIM LAW Schools
 INTRODUCTION
Muslim Law is divine law as opposed to man made law which are passed by
legislatures.

Concept of oneness of God unlike Hindus which believe in plurality of Gods.

Muslims believe that Mohammed was the last prophet sent by God and Quran is the
only revealed book of Allah.

Muslims acknowledge religious preachers and leaders after Mohammed but they were
not considered prophets.

Islamic society was not divided on basis of caste like Hindu society and everyone was
considered as an equal in the eyes of God.
 ARABIC SOCIETY BEFORE
THE REVELATIONS OF
PROPHET MOHAMMED
The society was governed by customs and usages which varied from tribe to tribe.
The disputes were referred to the chief of the tribe.

Most practices were affected by corruption, status of women was very low,
gambling, barbarism were substantial problems.

Islam reformed all this substantially, so much that the arabs called the period prior to
Prophet Mohammed, as Aiyyam-il-jahiliya i.e., the period of ignorance, wilderness
or savagery.
 PROPHET MOHAMMED (571 AD
– 632 CE)
Born at Mecca on 22nd April, 571 A.D., and he belonged to a prominent Arab family

of Quraish tribe.

He was raised be his grandfather Abdul Muttalib after death of his mother and father.

He married Khadija, a rich merchant widow at the age of 25 years. They together had

six children – four daughter and two sons. Out of 6 children only his youngest

daughter Fathima survived him.

After Khadija’s death, Prophet Mohammed married other women except his fourth

wife Ayesha Begum who was daughter of his friend and disciple Abu Bakr. From

other wives there were no children.

Fathima married Ali, who was Prophet’s cousin.

At the age of 40, when he was meditating in a cave called ‘Mt.Hira’ he received
the first revelation from God (wahi) which was communicated to him by
Gabriel (Angel of revelation)

Gabriel visited the Prophet as commanded by Allah revealing Ayat (meaning

signs, loosely referred to as verses) in Arabic over a period of 23 years.

Prophet’s first followers were Khadija, Waraqa (a blind scholar), Abu Bakr,
Ali, Umar, Usman and his daughters.

He faced opposition and was persecuted, humiliated, abused and dragged by his
hair from the temple of mecca.
As a result the prophet with his followers fled to Medina in 622 AD. This is
considered a start of a new era for Arabic and is termed ‘Hijrah’ i.e., Migration
because at Medina he formed a political group called ‘Umma’ and later there was
a war between the supporters and opposers of Mohammed in which Mohammed
emerged triumphant and became the supreme religious and political ruler of
Arabia and later many tribes joined his kingdom.

The Prophet performed his first and last pilgrimage in 632 CE. One hundred
twenty-thousand men and women performed pilgrimage that year with him. The
Prophet received the last revelation during this pilgrimage. Two months later,
Prophet Mohammed fell ill and after several days died on the eleventh year after
Hijra (June 8, 632 CE) in Medinah. He was buried at the same place where he
died.
Gabriel visited the Prophet as commanded by Allah revealing Ayat in Arabic over a period of 23 years.

The revealed verses were recorded on a variety of available materials such as leather, palm leaves,
bark, shoulder bones of animals, memorized as soon as they were revealed, and were recited in daily
prayers by Muslims.

All the revealed verses were compiled in the book known as Quran.

Prophet Mohammed was a messenger of Allah. He is the last of the prophets sent by Allah to guide to
the right path; Adam was the first prophet.

The Quran mentions twenty-five Prophets by name and provides a great insight of their mission,
struggles and their communities.

The religion propounded by the Prophet is ‘Islam’ and the persons who follow Islam are ‘Muslims’. In
Arabic, the word ‘Islam’ denotes ‘submission to the Will of Allah’ or ‘surrender to Allah’, and the word
Muslim refers to ‘one who adopts the faith of Islam’ or ‘one who surrenders himself to Allah’.
Three religions of the world – Judaism, Christianity and Islam originated from Arabian peninsular region.

Islamic law is a branch of Muslim theology, giving practical expression to the faith, which lays down how a Muslim should conduct in accordance with his religion, both towards God and towards other men.
FUNDAMENTAL
PRINCIPLES OF ISLAM
1. Belief in the existence of Allah - Iman
2. Belief in the unity of Allah – Tawhid
3. Belief in Mohammed as the Prophet – Rasul
4. Belief in Akhirat – Qayamat
5. Belief in brotherhood - Equality
PILLARS OF ISLAM

1. Faith (Kalma) – There is no God worthy of worhip except God and

Mohammed is His messenger. This declaration of faith is called the
Shahada.

2. Prayer (Namaz)– Salat is the name for the obliagtory prayer which are
performed five times a day and are a direct link between the worshipper and
God.

3. The Zakat – The word ‘zakat’ means both ‘purification’ and ‘growth’. It is
believed that all things belong to God, and that wealth is therefore held by
human beings in trust.
4.Fast (Ramzan) – Every year in the month of Ramadan,
all Muslims fast from first light until sundown as a way to
commemorate the revelation of the Quran.

5. Pilgrimage (Haj) – The annual pilgrimage to Mecca –

the Haj – is an obligation only for those who are
physically and financially able to perform it.
 Historical • First Period: The Legislative
developmen Period (622 -632 A.D.)
t of Muslim • Second Period: The Caliphate
law can be Period (632 -661 A.D.)
divided into • Third Period (661 – 900 A.D.)
five periods • Fourth Period (900 A.D. – 1924)
• Fifth Period (1924 onwards)
–
 • Began when Prophet Mohammed fled
away to Medina and ended with the death
of Prophet.
• Legislative period covered the last ten
First Period years of Prophet’s life where the messages
of Allah were easily believed.

(622 -632 • The aim of the Prophet was not to create a

new little change in the existing customary
A.D.) law of Arabia. His object was to teach men
how to act, what to do and what not to do.
• Most of the legal verses of the Quran were
revealed at that time and some of his
important judicial decisions and traditions
relate to that period.
• The verses of Quran are direct inspiration –
in the theory of Islam they are the very
words of Allah. Sayings or doings of the
Prophet without divine inspiration were
also followed by people as his precepts or
traditions.
 Second Period (632 – 661 A.D.)

• This period is known as the Caliphate Period known for the first four Caliphs
of Islam.
• Prophet did not nominate a successor. Therefore, after the death of Prophet
Mohammed the question arose as who would be the successor of Prophet.
• Majority of the people agreed that there should be an election, however,
some of them disagreed with the idea of election. The group that disagreed
included Prophet’s daughter Fatima who separated formed a separate sect
called SHIA.
• An election was also conducted in which Abu Bakr was elected. He was the
first Caliph and headed the community of the Muslims. He died in 634 A.D.
• Umar was elected as second Caliph. He was the Chief for ten years and was
assassinated in 644 A.D.
• Uthman became the third Caliph and he headed the community for twelve
years but was assassinated om 656 A.D.
• Ali, husband of Prophet’s daughter Fatima was elected as the fourth Caliph. He too
was killed in 661 A.D.

• These four Caliphs are known as the ‘rightly guided Caliphs’ (Khulfai-i-Rashidin)
because they had the privilege of being very close companions of the Prophet.

• In this period, all the divine messages were collected, arranged subject wise and
written to give a final shape in the form of the holy book Quran.

• The first collection of the Quran was by Zaid who was a close companion of Prophet
during the rule of Abu Bakr, however, it was found to be incorrect and contradictory
at many places.

• During the rule of Uthman, Zaid was asked to revise the holy book and correct it.
The earlier version of Quran was destroyed by Uthman. Thus, the authentic version
of Quran now available is the compilation done during the period of the third caliph.
 • The fourth Caliph had two sons Hasan
and Hussain and after death of the fourth
Caliph A, Hasan was elected as the fifth
caliph.
• Hasan, resigned in favour of Muavia, the
Third founder of the Umayyad dynasty.
• Muavia became the temporal and spiritual
Period (661 head of the Arabs. From him started the
rule of the Umayyad dynasty.
– 900 A.D.) • Two important events were introduced –
the seat of the Caliphate was shifted from
Medina to Damascus and secondly, the
hereditary principle of succession was
introduced in the Caliphate.
• After death of Muavia his son Yezid
became the next head of Muslim empire.
Ali’s second son, Hussain, revolted and
died fighting at Karbala.
• The Umayyad dynasty continued to rule till its fourteenth sovereign
was overthrown by the Abbasids in 750 A.D.
• Abbasids were the descendants of the Prophet’s uncle Abbas.
Abbasids made their capital at Baghdad and proclaimed also the
religious or spiritual headship of the Muslim empire.
• During the rule of Abbasids, the Calpihs for the first time used the
title of Imam for the spiritual head of Muslim community. During this
period came into existence the schools of Sunnis and Shias.
• The Sunnis were divided into four sects – Hanafi, Shafie, Maliki and
Hanabali.
• Shias were divided into three sub-sects – Ithna Ashria, Ismailia and
Zaidi.
• The traditions of the prophet, which were numerous and also scattered, were
collected and examined. Only authoritative traditions were accepted to be the
law.
• Where law was not available in the text of Quran or the traditions of the
Prophet, a theoretical exposition of law was undertaken by jurists.
• There were two ways to resolve issues in a society – To obtain a law through the
consensus opinion of the jurists (Ijma) and another method was to deduce a
law directly from the texts of Quran or traditions enumerated in the texts. This
is called analogical deduction (Qiyas).
 • During this period the practical and scientific
study of law and religion was made.
• The different schools of Sunnis and Shias came
into existence.
• The Abbasids ruled for five centuries and were
overthrown by the Mughals in 1258 A.D.
• The 37th Abbasid Caliph, Almusta sim B’lllah,
Fourth was assassinated along with all the members of
his family. The Caliphate, then, passed on to
Period Abdul Kasim Ahmad, who was installed as the
Caliph of the Sunni sect at Cairo in 1261 A.D.
(900 -1924) The dynasty of Abdul Kasim Ahmed continued to
have the Caliphate for about 250 years.
• The Caliphate was transferred to Salim I by a
deed of assignment in 1571 A.D. The Sultanate of
Turkey was abolished by Mustafa Kamal Ataturk
in 1922 and the Caliphate was also abolished in
the year 1924 by the national Assembly of
Ankara.
• During this period, the development of Muslim law became
stagnated. The result was that what was already laid down
as a rule of law by those jurists was simply followed by the
society. The doctrine of Taqlid (following or imitation).
• The scholars could not give independent judgments on the
point of law but their opinions are termed as Fatwas.
• Some of the important Fatwas are: Fatwai-Almagiri and
Fatwa Qadi Khan.
 • The Caliphate was abolished in 1924. In
several muslim countries steps were
taken towards codification of Islamic law.
• The Shariat Act of 1937 was passed to
make the grip of Muslim law strong on
Fifth Period all those persons who professed to be
Muslims. Only one major reform has
(1924 been made, viz., the Muslim Dissolution
of Marriage Act, 1939, which enables a
onwards) Muslim wife to sue for dissolution of
marriage on certain grounds.
• Except the Dissolution of Muslim
Marriages Act and Muslim Women
(Protection of Rights on Divorce) Act,
1986 there has been no legislative
enactment for modification of the
principles of Muslim law.
• The present Muslim law of India,
includes the traditional law, the legislative
enactments and the judicial precedents.
 SOURCES

Primary Secondary

Legislations
Quran
Sunnah/Sunnat
Customs

Ijma Judicial
Decisions
Qiyas
Justice, Equity &
Good conscience
 • Derived from the Arabic word ‘Qurra’ which
signifies ‘the reading’ or ‘that which ought to be
read’.
• Collections of all revelations are called ‘The
Recital (Al Quran)’.
• It is the name of the Holy Book of Muslims
containing the direct revelations from God
The Quran through the Prophet. Communicated to
Prophet by Gabriel (Ange of revelation) in form
of messages (wahi) over 23 years.
• Since Quran is compilation of the words of God,

(Koran) its words and authority are unchangeable.

• Quran is in the form of verses and these verses
are called ‘Ayat’. There are 6237 verses in Quran
which are contained in 114 Chapters. Each
chapter is called ‘Sura’.
• First ‘Sura’ of Quran is ‘Surat-ul-Fatiha’ which is
the introduction to the holy book and consists
of verses in the praise of the Almighty.
•Few other important Suras are –

i) Surat-un-Nisa – rules relating to women

ii) Surat-ul-Talaq – rules relating to divorce

iii)Surat-ul-Baqr – rules relating to religion and morality

iv)Surat-ul-Noor – rules relating to home life

•Quran is a mixture of religion, law and morality. Around 200 verses deal with legal
principles such as marriage, matrimonial remedies, maintenance, acknowledgment
of paternity, transfer of property, gifts, wills, inheritance, etc.

•Some of the verses have abolished objectionable customs like child infanticide,
gambling, usury (practice of lending money at high interest) and unlimited polygamy.

•Provisions for safeguarding interest of minors and disabled and for overall raising the
status of women were also there.
 • Ahadess is what was said by Prophet and Sunnat is his
practice and actions.
• The literal meaning of the term ‘Sunna’ is ‘a path, a
procedure, a way of action’ denotes some type of practice
and precdent.
• Revelations were of two kinds – Manifest (Zahir) and
internal (Batin).
• Manifest were the very words of Allah which formed the
Quran . Internal or implied revelations were those which
Sunnat or had been ‘Prophet’s own words but the ideas contained in
the sayings were inspired by Allah. These formed the
Ahadees Sunna.
• Traditions as a source of Muslim law, consists of:
i) Sunnat-ul-Qual (words spoken): these are the
utterances or the sayings of Prophet Mohammed
ii) Sunnat-ul-Fail (conduct): which includes the doings of
the Prophet, i.e., his behaviour, and
iii) Sunnat-ul-Taqrir (silence): which is the silence of the
Prophet in answer to a question which was put before
him for his decision. Silence amounted to implied
consent or approval of a rule of law.
• These Sunnats could be manipulated as they were
not certain as the ‘Quran’ and used as political
weapon which happened during the rule of
Umayyad dynasty so these sunnats were collected
and compiled by various people and these
collections were called ‘Musnads’.
• The preaching and precepts could become an
authorative source of law when some competent
and qualified person called Narrator, had narrated
it. If this narration was found to be reliable, it
became Sunna.
• According to Abdul Rahim a person to be narrator
must possess the following qualifications – must
have understanding , must possess the power of
retention, must be a Muslim, must be righteous
conduct.
• Following persons can be recognized as Narrators –
i) Companions of Prophet
ii) Successors of the Companions
iii) Successors of the Successors
 Ijma
• Ijma means the agreement of the Muslim Jurists of a particular age on a particular question
of law, in other words it is the consensus of Jurists opinion.
• When a new principle of law was required, the Jurists (Mujtahids) used to give their
concurrent opinion and new law was laid down.
• There are three kinds of Ijma:
i) Ijma of companions - The concurrent opinion of the companions of Prophet was
considered most authoritative and could not be overruled or modified.
ii) Ijma of Jurists - This was the unanimous decision of the jurists (other than companion).
iii) Ijma of people or masses -  It is the opinion of the majority of the Muslims which was
accepted as law. But this kind of Ijma has little value.
• Once a valid Ijma is constituted, it is regarded equal to Quranic verse i.e. it is equally
binding on people.
• Ijma authenticated the right interpretation of the Quran and the Sunna.
 Qiyas

• The word Qiyas was derived from term ‘Hiaqish’ which means ‘beat together.’ 

• In Arabic Qiyas means ‘measurement, accord, and equality.’

• If the matters which have not been covered by Quran, Sunna or Ijma, the law
may be deducted from what has been already laid down by these three
authorities by the process of analogy (Qiyas).

• The Qiyas is a process of deduction, which helps in discovering law and not to
establish a new law.

• For  valid Qiyas, the following conditions must be fulfilled:

i) The process of the Qiyas can be applied only to those texts which are
capable of being extended. The texts should not be confined to a particular
state of facts or rules having a specific reference.
ii) The analogy deduced should not be inconsistent
with the dictates of the Quran and authority of
Sunna.

iii) The Qiyas should be applied to discover a point

of law and not to determine the meanings of the
words used in the text.

iv) It must not bring a change in the law embodied.

• If there is a conflict between two deductions, a

jurist is free to accept any one of the deductions
from a text. Hence one analogy cannot abrogate
the other.

• Compared with other sources, Qiyas is of much

lesser significance. The reason is that on the
analogical deductions, resting as they do, upon the
application of human reasons, which is always
liable to error.
 • Legislation as per Cambridge Dictionary has been
defined as “a law or set of laws suggested by a
government and made official by a parliament.”

Legislation • Some important enactments on Muslim Personal

law are:

i) The Kazi Act, 1880

ii) Muslim Personal Law (Shariat) Application

Act, 1937

iii) The Dissolution of Muslim Marriage Act, 1939

iv) The Muslim Women (Protection of Rights on

Divorce) Act, 1986

v) The Muslim Women (Protection of Rights on

Marriage) Act, 2019
 • Judicial precedent refers to
the procedure by which
judges follow earlier decisions
in cases with relatively similar
facts. 
• Judicial decisions have played
an important role in laying
Judicial down rules of Muslim law in
accordance with the socio-
decision – economic conditions of the
Indian Muslims.
(Precedent) • Case – Begum Subanu vs.
A.M. Abdul Gafoor (1987)
First wife is entitled to claim
maintenance from husband if
she is living separately only on
the ground that husband had
contracted a second marriage.
 Customs

• Customs are also known as urf or ta-amul or adat and they have the
force of Ijma.
• Customs are recognised as an addition to Muslim law. Since there was
no Islamic law code at the time, the Prophet and his followers had to
rely on conventions to resolve some issues.
• Following conditions must be fulfilled for proof of a valid custom –
i) It must be ancient and of general prevalence.
ii) It must be territorial
iii) It should not be immoral or against public policy
iv) It should be continuous and invariable
v) It should not be opposed to Islamic law
Equity, justice and good conscience
(Istihsan, Istislah and Istidlal)

• The literal meaning of Istihsan means’ holding for better’ or referring or

considering a thing to be good.
• It is the juristic preference or the preferenatial opinion of a jurist as against the
Qiyas.
• To respond to various conditions in India, a number of Muslim provinces have
been transformed.
• Although the British originated this notion of equity, it has been adopted by
various Muslim law schools.
• This notion of equity was used in most of the matters handled by British
courts under Muslim law.
 Schools of Muslim Law
Schools
Sunnis
Hanafi

Maliki

Shafei
 Sub schools under Sunni sect
I. Hanafi school –
 Founder is Abu Hanafi
 Most popular school
 Relies on customs and precedents of Muslim community as traditions of
Prophet Mohammed
 When Quran did not explain on anything this school relied on Prophet's
traditions
 Book - Hedaya – discusses on inheritance and succession

II. Maliki School –

 Founder is Imam Malik bin Anas
 Flourished in Medina
 Originated from sunna
III. Shafei School –
 Founder Mohd. Bin Idris Shafei
 Idris was disciple of both Hanafi and Maliki School
 Combination of both schools
 Ijma is most important
 Main contribution was Qiyas
IV. Hanbali School –
 Founder Ahmed bin Hanbal
 He was a disciple of Imam Shafei
 Rejected Qiyas
 Based on sunna
 Book - Musnath
 Sub schools under the Shia sect
I. Ithna Asharia –
 They believed that starting from Ali there have been 12 imams
 Everything told and done by them became law
 This school recognized Muta marriage which is a temporary marriage
done only for pleasure and procreation
II. Ismaili-
 Followers of Ismail
 They beleive there have been 7 imams
 In india further divided into Khojas and Bohras
III. Zaidia –
 Founder is Zayad
 Son of 4th imam
 Incorporated some sunni principles
 Found in Yemen