Main Sources of Mohammedan Law - A comprehensive note

The main sources of Mohammedan Law are : -

 

According to the Sunni Law there are “four chief sources (ASL)”

 

1. The Koran;

2. Ahadis and Sunna;

3. Ijmaa;

4. Qiyas;

 

These four sources have the approval of the Prophet himself. Besides them, the following may also be enumerated, namely: -

 

5. Custom;

6. Judicial Precedents; 

7. Legislation;

8. Good conscience and equity

 

1. The Koran

 

The primary source of Muslim law is revelation which has been of two kinds express and implied. The Quran is composed of such express revelations as were made in the very words of God to Mohammed when he was bestowed with the office of the Prophet and Messenger of God. It is divided into 114 Chapters and composed of about 6237 Ayats.

 

It is in the form of a series of communications addressed by God to Prophet. The communications were declared to the people on a large number of different occasions in the last twenty-three years of the life of Prophet. It deals with a variety of subjects and a very small part of it comes into the domain 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 woman succession and inheritance, while some lay down punishment. It also contains general injunctions.

 

Its place -The Koran is the first source of Muslim law in point of time no less than in importance. But looking dispassionately at the Koran 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 Koran,” says Tyabji” must there to be compared, if, at all, to an amending Act rather than Code.”

 

2. Ahadis and Sunna

 

Just as Koran is the express revelation through Mohammed, 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. Sunna means that 'what the Prophet did', while Ahadis means 'what he said'.

 

Classification of Sunna-

 

(i) Sunnat-ul-kuul. - All words, counsel and precepts of the prophet.

 

(ii) Sunnat-ul-fail. - His actions, words and daily practice.

 

(iii) Sunna-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 are those traditions which are of public and universal notoriety and are held absolutely authentic. These traditions are accepted as genuine and authentic by all the sects of Muslims. Abdur Rahim aptly remarks that traditions of this class, like verse of the Koran, ensure absolute certainty as to their authenticity and demand implicit belief.

(ii) Ahadis-i-mushhura are those traditions which though known to the majority, do not possess the character of universal notoriety.

 

(iii) Ahadis-i-Wahid are those traditions which depends on isolated individuals. 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 Koran. These traditions should not be contrary to the Koran as they are the implied revelations of God. Regarding the place of traditions, Saxena on Muslim has reveals-

 

3. Ijmaa

Ijmaa means the consensus of the companions and followers of the Prophet. Abdur Rahim defines it as "the agreement of the jurists among the followers of Mohammed in a particular age on a particular question". After the death of the Prophet, as the expansion of the Islamic influence took place, a large number of new situations and new problems cropped up that would not be decided by reference only to Koran and Ahadis. The jurists then took the recourse to the principle of Ijmaa, that is, the consensus of opinion of jurists on any question. The authority of Ijmaa, as a source of law based upon tradition, "My followers can never agree upon what is wrong"

 

Classification:

 

(i) Ijmaa of the companions of the Prophet - It is that which is universally accepted throughout the Muslim world and is unrepealable. Though there is great difference of opinion among the important Muslim jurists with regard to the requirement of a valid Ijmaa, there is general agreement that Ijmaa 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.

 

(ii) Ijmaa of the Jurists - It is the opinion of majority of the jurists that, Mujtahids, the learned in the traditions of the Prophet and well acquainted with the meaning of the Arabic words and the passages in the Koran alone are competent to participate in Ijmaa.

 

(iii) Ijmaa of the people - As a source of law, this kind of Ijmaa has not much importance.

 

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

 

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

 

4. The Qiyas (Analogical Deductions)

 

Etymologically, Qiyas means "measuring", "accord" of "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 text."

 

Its place - 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 Kuran, Ahadis and Ijmaa. 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 Kuran and its interpretation.

 

5. Custom (Urf)

 

A custom is a tradition passing on from one generation to another, that originally governed human conduct and has obtained the force of law in a particular locality. It is a natural source of law. The Muslim Jurists do not expressly describe it 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 Mohammed.

 

The customs are not independent sources 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 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-

 

(i) inheritance, (ii) special property of females, (iii) marriage, (iv) dower, (v) divorce, (vi) maintenance, (vii) guardianship, (viii) gift, (ix) wakf, 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,

 

6. Judicial Precedents

 

The 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 decision 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.

 

7. Legislation

 

There have been many legislative enactments which have considerably amplified, altered or modified the original Muslim law.

 

For examples:

 

(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, 1939.

 

(v) Shariat Act, 1937.

 

(vi) The Dissolution of Muslim Marriage Act, 1931.

 

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

 

8. Good Conscience and Equity

 

Sometimes, analogical deductions fail, to satisfy the jurists owing to the narrowness and inadaptability of the habits or due to hardship to the public. In such case, according to the Hanafi, a jurist could use good conscience.

 

Conclusion

The sources of Muslim law form an intricate, hierarchical, and interrelated system where divine texts provide foundational guidance, supplemented by scholarly consensus, analogy, and reasoned interpretation to meet the evolving needs of Muslim societies. This layered system allows Islamic law to be both sacred and adaptable, balancing timeless ethical principles with practical governance.

 

Understanding these sources is essential for appreciating how Muslim personal laws operate legally and socially, particularly in pluralistic societies where Islamic law interacts with national legislations and diverse cultures.