Secondary sources of Muslim law

In this article we are going to understand Secondary Sources of Muslim law such as custom, Judicial decision, Legislation, Equity justice and Good Conscience.

The origin of Muslim law is Arabia where Mohammad enunciated Islam. The object of Islam is to create a sense of obedience and submission to Allah. His ordinances and thereby to walk on right path. Those who follow this path are Muslim. According to Amir Ali Muslim is any person who professes the religion of Islam, in other words accepts the unity of god and prophetic character of Mohammad.

Thus to be a Muslim only two things is required- one is that Allah is one and the second is the prophet hood of Mohammad. Islamic law is a branch of Muslim theology, giving practical expression to the faith, which lays down how Muslim should conduct himself through his religion, both towards god and towards other men.

Muslim law is personal law which is applied only on Muslims. It is applied by courts in India to Mohammedans not to all. Muslim law is the body of law which is derived from the Quran and other recorded saying of the Muslims Prophet Mohammad.

Secondary Sources of Muslim law are as follows:-

1. Custom

2. Judicial Decision

3. Legislation

4. Equity justice and Good Conscience.

1.Customs

Before the emergence of Islam in Arabia , customs were the basis of entire social life, religion, morality, trade and commerce. Custom is not a very important source of Muslim law like Hindu Law. Custom has not been recognised as a source of law in a Muslim Law.

However, it can’t be denied that custom has always been given place under Muslim law, if it is in conformity with Muslim law. Even though presently custom is not a very important source of law but in same matter of Muslim law custom play a very important role, these matter are-

(i) Agriculture land
(ii) Testamentary succession among
(iii) Charities other than Wakf, because these matters have not been included in the Section 21 of Shariat Act, 1937.

Conditions of valid custom :-

2. Judicial Decision

Judicial precedent refers to the practice by which judges follow the earlier decisions in cases with similar facts. The concept of judicial precedent is based on the principle of stare decisis, or conforming to what has already been declared.

These include the decisions of Privy-Council, the Supreme Court, High Courts of India, these decisions are regarded as precedents for future cases. Judicial decision is one of the distinguished characteristics of English Law. In India the plan of Warren Hastings of 1772 made provision that it was only the judiciary which introduced new set rules in personal laws of Hindus and Muslims.

In reality, this implies that lower courts must follow the procedural rules established by higher courts in previous decisions.

3. Legislation

In India Muslims are also governed by the various legislation passed either by the Parliament or by the state legislature. Legislation means law made by legislation.
The following are the examples of legislation in India :–

1. Dissolution of Muslim Marriage Act, 1939

2.The Shariat Act, 1937

3.The Mussalman Wakf validity Act, 1830

Some parts of the legislation were approved by the Hanbali school under the names Nizam (Ordinance / Decree), Farmans (irrevocable royal decrees and dastar amals (manual of regulations) but they were not connected to personal laws. The Britishers were never allowed to interfere with personal laws, Muslim law suffered greatly as a result of the lack of effective regulatory frameworks.

4. Equity, Justice and Good Conscience

One of the origins of Muslim law is the idea of fairness, justice, equity, and excellent conciseness. The Doctrine of Equity, Justice and good conscience is regarded as one of the sources of Muslim Law. These Islamic legal doctrines are known as “Istihasan” or “Justice Equity”.

Istihsan literally means approbation and may be translated as liberal construction or juristic preference. This term was used by great jurist Abu Hanifa to express the liberty that he assumed of laying down the law, which in his discretion, the special circumstances required, rather than law which analogy indicated.

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.