Sources of Muslim law
Religion plays an important role in the governing of the socio-cultural patterns and behaviors of human beings across the globe. Among the various religions of the world, Islam is one of the most popular one with more than 1 billion followers. The impact of religion on human lives is very dominant and is therefore necessary to understand its origins and sources. The birth of Muslim law was in Arabia where Prophet Mohammad formed Islam. The object of Islam is to inculcate a feeling of dutifulness and submission to Allah.
The individuals who follow this path are considered to be Muslim. To be a Muslim, there are mainly two requirements; the firm belief that Allah is the one true God and belief in the prophethood of Mohammed. In the words of Amir Ali, a Muslim is any individual who proclaims the religion of Islam and truly believes in the solidarity of god and prophetic character of Mohammad.
Islamic law is a part of Muslim religious philosophy, giving functional articulation to the confidence, which sets down how Muslim should act through his religion, both towards God and towards different men. One of the main principles of Islam is the acknowledgment of the creation of the universe by God and the prescription of certain behaviors that humans must observe.
The sources of Muslim Law can be understood by dividing it into:
- Ancient sources
- Customs ; and
- Modern Sources
ANCIENT SOURCES OF MUSLIM LAW
The ancient sources of Muslim law are:
- The Quran
- The Sunna
- The Ijma ; and
- The Quiyas
These ancient sources act as the primary source and the remaining act as the secondary source. All schools of Muslims accept the Quran and the Sunna as primary sources, whereas there is conflict of acceptance and opinion with regard to Ijma and Qiyas among various schools of Muslims.
- THE QURAN: The Quran is considered to be one of the most essential and main source of Muslim Law. Muslim law is founded and based on the Al-Quran, which is believed by Muslims to entail the very essence of God. The word ‘Quran,’ has been derived from the Arabic word ‘Qurra’ which means ‘to read.’ The whole of the Islamic community owes its origin and incarnation to the Quran. The Quran is considered to be the words communicated to Prophet Mohammed by angel Gabriel. It acts as a reference of morality by stating as to what is right and wrong and thereby governs the socio-cultural, secular and spiritual life of Muslims. Since the origin of the Quran is considered to be not of the earth, the courts of law are given no authority to alterchange the apparent meaning of the verses. In the case of Aga Mohammed Jaffer v. Koolsom Bebee, a similar view was held. In case the Quran does not state its opinion on any particular matter, the Sunnat is always taken as a guidance.
- THE SUNNAT: The Sunnat deals with traditions, practices and precedent which were formulated by prophets through revelations. The word Sunna means the trodden path. It is believed by Muslims that the revelations were of two kinds. One being the revelation through angel Gabriel which is considered as the manifest (Zahir) revelations and the other the internal ( batin) revelations which consisted of the revelations of the prophets. The Quran is composed of the Manifest revelations. The Sunna is the model behavior of the prophet. The traditions or Hadis were formulated thorough the account of the preaching of the prophet. The traditions were not written down but were carried down from generation to generation through the authorized individuals. The importance of traditions were laid down in the Quran which therefore acts as a source of Muslim law. The traditions are classified into a) Sunnat and b) Ahadis. These two have further been sub-divided based on the mode or manner of origin.
- THE IJMA : The Ijma can be considered as an agreement among the jurists of Muslim Law particularly in the question of law. It dealt with the future of Islamic jurisprudence. This was formulated based on the Hadis or traditions given in the Sunnat. The principle is that God will not allow his people to agree on an error . The validity of the Ijma is based on the sunna of the prophet. It is believed that if at all the Quran and traditions fail to help, the consensus of the opinion of the companions of the prophet and his followers is recognized as the best guide of law. Thus it is considered as a source of Muslim law.
- THE QIYAS: The Ijma and Qiyas deal with the future of Islamic Jurisprudence. This is the final primary source of Muslim Law. It deals with the applicability of the laws prescribed in the texts in scenarios. It is not formulation of new laws but rather application of already existing principles to new circumstances.
CUSTOMS AS A SOURCE OF MUSLIM LAW
Urf or customs is a secondary source of Muslim Law. Even though the recognition of customs have not been widely recognized as a source of Muslim law, a value of importance has always been given. There are certain criteria to examine the validity of a customs failing which it is deemed invalid. The customs must be in conformity with Muslim Law, it must be territorial, it must be in existence from time immemorial, should have been continuous, should not oppose public policy , should not be in contravention to the principles stated in the Quran or Ijma.
MODERN SOURCES OF MUSLIM LAW
The modern sources of Muslim law are
- Equity, Justice and Good Conscience
- The doctrine of Equity, Justice and Good Conscience is considered to be of the source of Muslim law just like any other law. Abu Hanafi expounded the principle where the rule of law could be set aside at the opinion of the judge to meet the requirements of a particular case based on juristic preference. Several area of Muslim law were altered to meet the changing requirements of laws in India.
- The Orders and decisions of the courts are considered as a source of Muslim law. These decisions are considered a precedent for future cases. In India, the warren hasting’s plan of 1772 made provision for the judiciary to introduce new set of rules in personal laws of Hindus and Muslims. There are various instances where conflicts in the Muslim law have been resolved through the court and have been followed in eventual cases.
- Muslims in India are governed by various legislations such as The Shariat act 1937, Dissolution of marriage act 1939 etc. These legislation have an important role in modification of Muslim law to prevent conflicts and provide relief to Muslims. The legislations were enacted according to the need of the time.
The Laws regulating Muslims have been developed and maintained in an orderly and systematic manner and has contributed to the efficient governance of Muslim community in India.
Author: Anil George,
Christ University, 2nd year