SOURCES OF MUSLIM LAW

A source of law refers to the original material(s) where the contents of law are found. It is essential so as to have the law, its explanation and its right interpretation.

SOURCES OF MUSLIM LAW:

1. PRIMARY

2. SECONDARY

1) The sources that the Prophet Mohammad directed will be the primary sources.

2) These are to be followed in their respective order of priority

3) They are also called formal sources

4) The whole of Muslim personal law is based on these

1) These sources explain or modify the primary sources.

2) They deal with the needs of the Islamic society in the modern era.

3) These are also called extraneous sources.

4) Some of the personal rules may find places in the sources, e.g., customs.

THE PRIMARY SOURCES

1) QURAN

The term “Quran” has its roots in the Arabic word ‘Qurra’ and refers to ‘the reading’ or ‘what ought to be read’. The first revelation (Wahi) came to the Prophet in 609 A.D. They continued for about 23 years. These revelations were the messages of God made by Angel Gabriel. These revelations were given out then to the people through the preaching of the Prophet.

These delivered messages were remembered and some were reduced to writings on animal skin, palm leaves, etc. After the Prophet’s death, theses were collected, assembled and then systematically presented under the authority of the third Caliph, Osman. The first version is said to have been in the custody of the Prophet’s wife and Osman’ daughter, Umme Hafsa. There were other versions, too, but either they were not accepted or they were suppressed.

SALIENT FEATURES OF QURAN

1) Divine Origin: The religious book has a divine origin. It is believed that these were the words of God himself and the Prophet mere uttered these words. Thus, it is unchangeable and its authority is beyond reproach. The Quran is the Al-furqan, the one that shows the truth from falsehood and the right from the wrong.

2) First Source: It is the first and fundamental source of Muslim law and Islamic principles. It is ultimate source of laws.

3) Structure: It is in form of verses, each verse is called an ‘Ayat’. There are 6237 ayats in 114 chapters, each called ‘Sura’. The holy book is arranged topic wise with respective titles. The first chapter praises the almighty God. Other chapters include, surat-un-nisa (chapter relating to women), surat-ul-noor (rules relating to home-life) and surat-ul-talaq (the rules relating to divorce).

4) Mixture of religion, 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. In some places in the book, all three can’t be separated at all. Thus, the whole of Quran cannot be source of a law, instead we refer to the 200 odd law-making ayats scattered all over the book as the basic source of Muslim Law.

5) Different forms of legal rules: It has many categories, the ones that remove social evils like child infanticide, gambling etc, 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.

6) Unchangeable: 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 verses as it does not have an earthly origin.

7) Incompleteness: In the 200 odd verses of law in the Quran, only 80 or so deal with the personal law. Hence, we say that it is not a complete code of Muslim personal law; it only lays down the basic principles.

Further, on many an issue, the Quran is silent.

With the spread of Islam, the necessity arose to explain and supplement the Quran so as to deal with the new problems of a growing Islamic society.

2) SUNNA OR AHADIS: TRADITIONS OF THE PROPHET

In the pre-Islam Arabia, Sunna meant an ancient and continuous usage that has been established in the society. Sunna literally means the “ trodden path”. Sunna or Ahadis means the traditions of the Prophet. It means that whatever the Prophet said or did without the reference to God is his tradition. The Prophets acts and words are believed to have been inspired by God and thus are treated as internal revelations. Thus, tradition is another source of law in the language of the Prophet. So wherever the Quran is silent, the Sunna /Ahadis were referred to.

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.

i) Sunnat-ul-Qaul: refers the words spoken by the Prophet.

ii) Sunnat-ul-Fail: includes the conduct and behaviour of the Prophet.

iii) Sunnat-ul-Taqrir: by his silence, the Prophet gave an implied approval to pre-islamic customs, practices and questions.

Sunna must be differentiated from Hadith. While the latter is a story or occurrence of an incident, sunna refers to the law that was derived of such conduct of the Prophet.

NARRATORS OF THE TRADITIONS

The traditions noticed by competent and qualified person were treated as authoritative if they were found to be reliable. The competence was judged by the mental understanding, power of retention, righteous conduct of a person and on the basis of whether he was a Muslim or not.

i) Companions of the Prophet: The Muslims who lived with the Prophet during his lifetime and were close to him are called the Companions. Their testimonies are the most reliable ones.

ii) Successors of the Companions: The Muslims who came in contact with the Companions of the Prophet are called the Successors. They stand second in reliability.

iii) Successors of successors: The Muslims who were in constant companionship of the Successors come last in the line.

The further a narrator from the Prophet, the lesser authority is given to his narration.

KINDS OF TRADITION

i) Ahadis-i-Mutwatir are the universally accepted traditions. There is no doubt as to their certainty and have been narrated by many people. All sects of Islam follow them.

ii) Ahadis-i-Mashoor are the popular traditions which were narrated by the companions of the Prophet and have found mass acceptance. It is the source of law for a majority and not all.

iii) Ahadis-i-Ahad are the isolated traditions that have not been followed regularly or by many. Generally, the acceptance and practice is a localised one.

Traditions were passed on from generation to generation and soon became the practice. They were not written or systematically arranged initially. Muvatta is regarded the first systematic collection even though a few efforts were made before. The number of traditions is staggering, for example, Masnad has about 80,000 traditions collected and written in it.

DRAWBACKS

Some of the traditions have a doubtful origin and some are even contradictory to each other. There are no uniform or certain rules on certain issues. Mixture of law and religious or moral principles makes the extraction of the actual law a rather tedious task. Traditions derive authority from the writers, with the death of successors and others; this means could no longer be practised. In addition, the Shias followed only those traditions that came from the Prophet’s family.

The importance and role of traditions is immense but another source of law was needed to deal with the expanding Islamic Society.

3) IJMA: UNANIMOUS DECISIONS OF THE JURISTS

Ijma means the opinion of the learned. When persons knowledgeable in law would agree upon a point, such consensual opinion was referred to as Ijma. Thus, Ijma is the unanimous decision of jurists for a particular question with reference to that age or communal legislation. It is through the tradition of the Prophet that Ijma derives its validity and authority as a source of law. The Prophet is believed to have said that, ‘God will not allow his people to agree on an error’. The Hanafi doctrine of law changing along with times found support in the Maliki view that new facts require new decisions.

FORMATION OF IJMA

Whenever law needed a new principle, the jurists used to give a consensual opinion so as to enable a solution. To be a jurist or Mujtahid, it was essential that a person was a Muslim with adequate knowledge of law and was competent to form logical deducements. Ijtihad refers to the process of creating law through consensus on the basis of ‘exercise of one’s reasoning so as to create a new rule of law’. The Ijma had to be justified with references to the principles given in the Quran or the tradition as well as public policy, interest of the community and equity. The Mujtahtids are the recognised interpreters of law.

KINDS OF IJMA

i) Ijma of the Companions: the consensual opinion of the Companions is believed to be most authoritative and accurate. It cannot be overruled or modified by subsequent Ijmas.

ii) Ijma of the Jurists: the opinion of learned scholars was believed to be the next best Ijma after the Ijma of the Companions.

iii) Ijma of the People: At times, the mass acceptance of a principle as law was also accepted. Nevertheless, it is of little consequence with respect to core issues and principles of the Islam.

As can be seen, the authority of Ijma depends upon the capabilities of the people participating in its formation.

IMPORTANCE

A major chunk of the fiqh or actual Muslim law came through Ijma. 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. It was through Ijma that the real opportunities for interpretation of the hereto rigid Quran and Traditions came up. It is even referred to as the ‘living tradition’ at times.

DEFECTS

The Ijma lead to various reading and versions or interpretation of the Quran, Sunna, custom etc. As a result, different sub-sects were formed. The choice of unanimous opinion or majority opinion is another bone of contention. The Ijma of the jurists and the people could be overruled at any time; thus, they were not able to contribute substantially to certainty in law. With the spread of Islam and lack of a well- established communication network, obtaining consensus of all the jurists was a major problem. Again the stock of learned and accepted scholars ran short of the requirement and by 10th century, the Ijma had to be abandoned.

4) QIYAS: ANALOGICAL DEDUCTION

Qiyas refers to ‘measurement’ in the Arabic language. It also refers to comparing a thing in relation to a standard or ‘to establish an analogy’. Some have described it as the analogical deduction from the reason of a text to a case not actually covered by its language. In simple words, it is a method of comparing a problem in present times to a similar problem for which the solution is provided in the texts.

It is a weak Ijtihad, one’s own exertions to find a solution through reason. But it is more important and powerful than a mere rai or opinion of a jurist.

First, a similar problem with a solution is found and the reasoning behind it was taken so as to establish a common cause. Then solution to the present problem is directly deduced from the texts in form of a law derived. Here, the spirit or the implied meaning of the text is taken into consideration.

Unanimous consensus between those deducting was not essential. The only requirements are that the person deducing is a Mujtahid and he deduces the law from a text of Quran, Traditions or Ijma.

QIYAS AND ISIHSAN

Istihsan means juristic equity, thus, it is a conclusion of law based on the jurist’s sense of justice or equity rather than any text. It is recognised only under Hanafi Law.

QIYAS AND ISTIDLAL

Istidlal refers to inferring one thing from another. Here only an inference is drawn and analogy is not established. This rule of interpretation is accepted only in Maliki and Shafei schools.

NOTE: There exist differences in all schools and sects regarding the Primary sources. 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.

Fatwas are not a source of law but they have contributed a fair bit in the improvement and expansion of law

THE SECONDARY SOURCES

1) URF OR TAAMUL: CUSTOM

Before Islam, customary law governed Arabia. Then the Prophet abolished most of them, as they were un-Islamic and bad. Some customs, however, were continued due to the Prophet’s silent approval. Some were even included in his traditions. Otherwise, some customs survived due to their incorporation in the Ijma.

IMPORTANCE

It is not a formal source, yet, in the absence of rule of law in the texts of the primary sources, the customary practices are regarded as law. The British Courts in India held that a custom would prevail over a written text provided that the custom was ancient and invariable.

PRESENT POSITION

The Shariat act, 1937 has abolished most of the customs. Section 2 lists ten matters including inheritance, marriage, divorce, wakf and, maintenance wherein customs and usages cannot be applied anymore. Customs are still applicable to Muslims with regard to agricultural lands, charities and religious endowments. Even in matters of wills, adoption

and legacies, the customary law will apply unless a Muslim expressly states that the Shariat should regulate them.

Additionally, the Shariat Act is not applicable to the state of Jammu and Kashmir. Thus, the rules of Muslim law there are subjected to customs and usages.

2) JUDICIAL DECISIONS

The Privy Council decided many a case related to Muslim law. 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. This box of precedents will lose its binding force only if the Supreme Court overrules a particular decision. Elsewhere, an opinion seems to be forming that judges are now making the law the way the early Muslim jurists did.

Judgements of a superior Court are an authority for the lower courts. Plus the judgements of the higher court become the law of the land and thus are binding on all the lower courts. This is called the principle of Precedents. Law of pre-emption, validity of gifts to minor wife, 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, equity and good conscience to develop the law further.

Many a times, legislations have overruled or negated the rules; they are still a source of law.

3) LEGISLATIONS

God is the Supreme legislator as per Islam. Thus, sometimes, legislative modifications are also treated as encroachment. Still, 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.

a) The Mussalman Waqf Validating Act, 1913 – It merely re-established the validity of family-wakfs.

b) The Child Marriage Restraint Act- It makes the marriage of a boy under 21 years of age and a girl under 18 years a ‘child marriage’ and punishable without affecting the validity of it.

c) The Muslim Personal Law (Shariat) Application Act, 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, 1939 – It provided rights to judicial divorce under the grounds mentioned in it to women who traditionally had no independent right to seek divorce.

e) Muslim Women (protection of Rights on Divorce) Act, 1986 – The issues of maintenance after divorce, maintenance during idddat are dealt with comprehensively.

f) Punjab and Haryana’s Muslim in Muslim Shrine’s Act, 1942.

There are other Acts too which deal with Muslim personal Law. Some lay down the procedure rather than altering substantive rules of Muslim personal Law. 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, 1850 changed the laws of the pre-existing rights of converts;

b) The Indian Evidence Act, 1872 changes the traditional outlook on legitimacy via Section 112;

c) The Indian Majority Act, 1875 differed on its definition of majority; and

d) The Dowries Prohibition Act, 1961

Similarly, alternate legislation available to all religions have made its impact felt on the Muslim personal law. For example, a couple that marries under the Special Marriage Act, 1954 will be regulated by this Act for matters concerning the martial life and not by the personal laws of the party. The inheritance and intestate succession of the spouse or heirs will also be governed under the Indian Succession Act, 1925. It does not matter whether the persons getting married under this law are from the same religion or sect or not.