Souces of Muslim Law

 Q. 7. Discuss the various sources of Muslim Law.

 

Ans.

 

Sources of Muslim Law

Sources of Muslim Law may be divided into two categories:

(a) Primary Sources, and

(b) Secondary Sources.

 

(A) Primary Sources.-Those sources of Muslim Law, which the Prophet Mohammad regarded as the sources of law may be called primary sources.

 

Primary sources are the following:

 

(1) Quran

(2) Ahadis or Sunna

(3) Ijma

(4) Qiyas

1. Quran.- The Quran is composed of such express revelations as were made in the very words of God to Mohammad when he was bestowed with the office of Prophet and messenger of God.

It is divided into 114 Chapters and is composed of about 6237 Ayats. It is in the form of a series of communications addressed by God to the Prophet through the Angel Gabriel. The communi cations were declared to the people on a large number of different occasions in the last twenty three years of the life of the Prophet. It deals with variety of subjects. Only few verses (Ayats) of Quran deal with rules of law. The law-making verses are about 200 in number and are scattered in different parts of the Holy Book. Of the verses which embody rules of law, some seek to repeal objectionable customs such as infanticide, gambling, usury and unlimited polygamy, etc.; some seek to make reforms in the cases of women, succession and inheritance, while some lay down punishment. It also contains general injunctions.

 

Its place. The Quran is the first source of Muslim Law in point of time not less than in importance. But looking dispassionately at the Quran itself as the first source of law, it does not, in any portion of it, refer to be a Code complete in itself. "The legal position of the Quran", says Tyabji "must therefore be compared, if, at all, to an amending act rather than Code."

 

2. Ahadis or Sunna (Traditions). Just as Quran is the express revelation through Gabriel (Angel) to Prophet Mohammd, the Ahadis and Sunna are implied revelations in the precepts and sayings and actions of the Prophet, not written down in his lifetime, but preserved by traditions and handed down by authorised agents.

 

Classification of Sunna.-

(1) Sunnat-ul-Qaul.- Uttering’s preaching and sayings of the Prophet.

(2)    Sunnat-ul-Fail. His actions, and daily practice.

(3) Sunnat-ul-Taqrir. His silence implying a tacit approval of what was done in his presence

 

From the point of view of their importance and authority, traditions may be classified as under:

 

(i)                 Ahadis-i-mutwatra-Those traditions which are of public and universal notoriety and are held absolutely authentic come under this category. These traditions are accepted as genuine and authentic by all the sects of Muslim. Abdur Rahim aptly remarks that traditions of this class, like verse of the Quran, ensure, absolute certainty as to their authenticity and demand implicit belief.

(ii)               Ahadis-i-mashhura-Those traditions which though known to the majority, do not possess the character of universal authority are known as Ahadis-i-mashhura.

(iii)              Ahadis-i-wahid-Those traditions which were narrated by very few narrators are called Ahadis-i-wahid. Most of the Muslim jurists do not accept these traditions as a source of law.

 

Its Place.-Traditions are second source of law coming next in importance to the Quran. The traditions should not be contrary to the Quran as they are the implied revelations of God.

 

"In spite of so much adverse criticism discrediting or minimising the importance of traditions, their value in the development of law and the interpretation and historical study must not be overlooked-(Saxena)

3. Ijma: Meaning.-Ijma means the consensus of the jurists (Mujtahids) among followers of the Prophet. Abdur Rahim defines it as "the agreement of the jurists among the followers of Mohammad in a particular age on a particular question." After the death of the Prophet, as the expansion of the Islamic influence look place, a large number of new situations and new problems cropped up Which could not be decided by reference only to Quran and Ahadis. The jurists then took the recourse to the principle of Ijma, that is, the consensus of opinion of jurists on any question. The authority of Ijma, as a source of law is based upon tradition, "My followers can never agree upon what is wrong".

Classification.-

(i) Ijma of the companions of the Prophet This kind of Ijma is universally accepted throughout the Muslim World and is unrepealable. Companions are those Muslims who had the privilege of being in contact with the Prophet. Though there is great difference of opinion among the important Muslim Jurists with regard to the requirement of a valid ijma, there is general agreement that Ijma of the companions of Prophet should invariably be accepted. The reason behind it was that those associated with the Prophet as his companions must have known, as by instinct, the policy of the Islamic Law and whether a particular rule or decision was in harmony with its principles. Ijma of the companions can not be repealed or modified by the ijma of a subsequent age.

(ii) Ijma of the jurists other than companions. It is the opinion of majority of the jurists (Mujtahids) who are learned in the traditions of the Prophet and well acquainted with the meaning of the Arabic words and the passages in the Quran. The Muslim jurists (Mujtahids) alone are competent to participate in Ijma.

(iii) Ijma of the People-As a source of law, this kind of ljma has not much importance.

 

Its place.-Ijma is the third source. It owes its authority to the tradition, "My people can never agree upon what is wrong". The Ijma of the companions of the Prophet Mohammad is deemed to be the best guide and is universally accepted as an authority next to Quran and Ahadis.

Ijma, as a matter of fact, was intended to be a source of law, for all times to come, but the extreme uncertainty of the procedure to regulate it made it a thing of doubtful utility.

 

"Ijma cannot be confined or limited to a particular age or country. It is completed when the jurists after the deliberation come to a finding. It cannot then be questioned or challenged by any individual jurist. Ijma of any age may be reversed or modified by the Ijma of same or the subsequent age." (Saxena on Muslim Law).

 

Note. The Shia jurists do not recognise ljma as a source of law. They accept only those traditions which had come from the members of the Prophet's family.

4. The Qiyas (Analogical Deductions).-Etymologically Qiyas means "measuring", "accord" or "equality". In Muslim jurisprudence it means an extension of law from the original text by means of common sense. According to Jung, "it is a process of deduction applying the law of the text to the cases which, though not covered by the language of the text, are nevertheless covered by the reason of the text."

 

Its place.-Qiyas is subsidiary source of law. Qiyas is analogical deduction derived from a comparison with law in one of the first three sources when they do not apply directly to a particular case and occupies a place next to Quran, Ahadis and Ijma. Analogical deduction should not be opposed to Quran, Ahadis and Ijma. but must be based upon either of these sources. There are some jurists who do not recognise Qiyas. This gave rise to a rigid school of law represented by Az-Zahir, who undertook the scientific study of the Quran, and its interpretation. But the majority of the jurists agree to take recourse to the pure reasoning as a supplement to the three sources of law in case of necessity.

 

Correctives to Qiyas.-(i) Istehsan.-If the Qiyas was opposed to the habits of the people and was therefore inapplicable or otherwise likely to cause hardship, Abu Hanifa gave to the Judges option to override Qiyas and apply that law which suited the circumstances of a case in question. The use of option was known as Istehsan..

(ii) Istidlal-It is a doctrine of public good which enables jurist to override Qiyas which is positively harmful to general public. Istidlal means inferring a thing from another thing (Abdur Rahim: Mohammadan Jurisprudence, p. 166) a

 

Note-Under Shia Law, the primary sources of law are:

 

(1) Quran.

 

(ii) Traditions-Only such traditions which are handed down from the Prophet's household, and

 

(iii) Reason

 

Shias do not recognise ljma and Qiyas as sources of law.

 

(B) Secondary Sources.-Secondary sources of Muslim law are the following

 

(1) Custom;

 

(2) Judicial Precedents;

 

(3) Legislation; and

 

(4) Equity, justice and good conscience.

 

(1) Custom (Urf): Meaning.-The Muslim jurists do not expressly describe custom as a source of law but those customs and usages which were not modified or abrogated by the Prophet, remained good and valid. The primeval customs were regulated by Mohammad.

The custom is not an independent source of Muslim Law. During the British regime, Courts in India recognised the legal force of customs on some occasions in spite of the fact that they were opposed to the clear texts of a primary text of Muslim Law. This caused great dissatisfaction among the orthodox Muslims and led to the passage of Muslim Personal Law Application Act, 1937, which is also called Shariat Act, 1937 which abolishes most of the customs from the Muslims Personal Law Section 2 of this Act lays down that if the parties are Muslims, only Muslim Personal Law will be applied to them in the following matters

 

(1) inheritance, (ii) special property of females, (iii) marriage, (iv) dower, (v) divorce, (vi) maintenance, (vii) guardianship, (viii) gift, (ix) waqf and (x) trust.

 

In respect of these matters customs or usages have no place. But customs are still applicable in matters of agricultural lands, charities and religious and charitable endowments.

 

(2) Judicial Precedents.-Interpretation of Mohammedan Law by the Judges of the Indian High Courts and Supreme Court continue in modern times to supplement and modify the Islamic Law, as such they are continuing sources of Mohammedan Law. These include the decisions of the Privy Council, the Supreme Court as well as of the High Courts of India. These decisions are regarded as precedents for future cases.

 

(3) Legislation.-There have been many legislative enactments which have considerably amplified, altered or modified the original Muslim Law.

(i) The Guardians and Wards Act, 1890.

(ii) The Mussalman Waqf Validating Act, 1913.

(iii) The Mussalman Waqf Act, 1923.

(iv) Child Marriage Restraint Act, 1929. (Repealed by Prohibition of Child Marriage Act, 2006.)

(v) Shariat Act, 1937.

(vi) The Dissolution of Muslim Marriages Act, 1939

(vii) The Muslim Women (Protection of Rights on Divorce) Act, 1986.

(vill) Waqf Act, 1995

(ix) Prohibition of Child Marriage Act, 2006.

 

(4) Justice, equity and good conscience.-Sometimes analogical deductions failed to satisfy the jurists owing to the narrowness and inadaptability of the habits or due to hardship to the public. In such a case, according to the Hanafis, a jurist could use good conscience