Sources of Muslim law

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.

Sources of Muslim law can be classified into two categories i.e., Primary sources and Secondary sources.

1. Urf or custom
2. Judicial decision
3. Legislation
4. Equity, Justice and Good Conscience

1.Quran

Muslim law is founded upon Al-Quran which is believed by the muslims to have existed from eternity, subsisting in very essence of god. The word Quran has been derived from the Arabic word Quarra which means to read.

It is the Original or Primary source of Muslim Law. Quran is the name of the holy book of the Muslim containing the direct revelations from God through Prophet. The direct express or manifest revelations consist of the communication which were made by the angel Gabriel, under direction from God to Mohammad either in the very words of God or by hints and of such knowledge which the Prophet has acquired through the inspiration of God. All the principles, ordinance, teachings and the practice of Islam are drawn from Quran.

The Quran can be in no way altered or changed thus, even the courts of law have no authority to change the apparent meaning of the Quran.

2.Sunnat (Traditions or Ahadis)

The literal meaning of the term “Sunna” is the trodden path. It denotes some practice and Precedents of the Prophet, whatever the Prophet said or did is treated as his traditions. It is the second source of Muslim law after Quran.

Where the words of Allah could not supply an authority for a given rule of law, Prophet’s words were treated as an authority because it is believed that even his saying derived inspiration from Allah.

Internal revelation is opinions of the prophet which is delivered from time to time on questions that happened to be raised before him. Sunna means the model behavior of the prophet. The narrations of what the prophet said, did or tacitly allowed is called hadis or traditions. The traditions, however, were not reduced to writing during lifetime of Mohammad.

They have been preserved as traditions handed down from generation to generation by authorized persons. The importance of hadith as an important source of Muslim law has been laid down in the Quran itself.

According to Muslim Law, there are two types of revelations i.e., –

(I)Manifest (AL-Zahir)
words of Allah and came to the Prophet through the angel Gabriel. Manifest or express revelations were the very words of Allah and came to the Prophet through the angel
Gabriel and such revelations became part of the Quran.

(II) Internal (Batin)
Manifest or express revelations were the very words of Allah and came to the Prophet through the angel Gabriel and such revelations became part of the Quran. On the other hand, the internal revelations were those which were the Prophet’s words and didn’t come through Gabriel, such internal revelations formed part of Sunna.

Traditions
Traditions, therefore, differ from Quran in the sense that Quran consists of the very words of God whereas a Sunna is in the language of Prophet.

3.Consensus
Ijma means collective opinion with the death of the Prophet the original law-making process ended, so the question which could not be solved either by the principles of the Quran or the Sunna, were decided by the Jurists with the introduction of Ijma. Therefore, it is third source of Muslim Law.

Ijma means agreement of Muslim Jurists of a particular age on a particular question of law, in other words, it is the consensus of Jurist’s opinion.

Kinds of Ijma

4. Qiyas

If the matter which have not been covered by Quran, Sunna, Ijma the law may be deducted from what has been already laid down by the three authorities by the process of analogy, and this is known as Qiyas. In simple language Qiyas may be defined as a process of deduction by which law of the tent is applied to cases, Qiyas means reasoning by analogy from above 3 sources i.e., Quran, Sunna, Ijma.

It should be noted that Qiyas does not purport to create a new law, but merely to apply old established principles to new circumstances.

1. Urf or Custom

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 :-

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

4. Equity, Justice and Good Conscience

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.