SOURCES OF MUSLIM LAW
What are the main sources of Muslim law?
Law may be defined as those rules and regulations which regulate the conduct of human being in a society. Law does not emerge out itself. There are many sources from where a law emerges. In the modern age, legislation as well as judicial precedents are the main sources of any law.
On the other hand, personal laws are associated with the particular group of persons or a community and based upon a religion and customs. The main source of any personal law is religion and the working of the famous saints of that religion. Muslim law is a personal law and it is one of the ancient personal law in the history. That is why, sources of Muslim law can be classified into two heads:-
• Ancient Source of Muslim law
• Modern Source of Muslim law
Ancient sources of Muslim law includes Quran, Sunnat and Ahadis, Ijma and Qiyas whereas modern source of Muslim law includes Urf or customs, legislation, judicial precedents, Justice equity and good conscience.
Ancient Sources of Muslim law:-
• Quran:- In Islam, Quran is considered as divine communication and the first source of Muslim law. It is considered as a message of God given by angel Gabriel to Prophet Muhammad. It is the paramount and universal authority of Muslim law and contains provisions regarding marriage, guardianship, inheritance and all the matters related to Muslims.
• Ahadis:- The traditions about the teachings and behaviour of Prophet Muhammad. The narrations of “what Prophet said, did or allowed in his lifetime is called Ahadis. These traditions were not reduced to writing during his lifetime but preserved and passed on generations to generations by authorised persons. Ahadis can be divided further into:-
- Ahadis-i-Mutwatir:- These are those traditions about Prophet Muhammad which are universal in nature and also followed throughout the Islamic word.
- Ahadis-i-Mashhoor:- These are the ones which are comparatively less followed by the Islamic population.
- Ahadis-i-Wahid:- These are those traditions which are followed in some isolated places of Islamic community.
• Sunnat:- During the lifetime, Prophet Mohammed pronounced his verdicts, did certain things and allowed the doing of certain things permitted by Islam. So what was said or done or upheld in Silence by Prophet Muhammad is known as Sunnat. So primarily Sunnat means the model behaviour of Prophet Muhammad. It can be divided into the following forms:-
- Sunnat- ul- fail:- Traditions about which Prophet did himself.
- Sunnat- ul- qual:- Traditions about which Prophet said himself.
- Sunnat- ul- tuqrir:- Traditions about the things done in his presence without his disapproval.
• Ijma:- It is the consensus of opinion of jurist on some legal issues at a particular point of time. If no solution is found on a legal question in Quran or sunnat, then such consensus of opinion can be made the source of law. These jurist are called Mujtahids and the process of formation of consensus is called is Ijtihad.
• Qiyas:- Qiyas means reasoning by analogy from the three sources i.e. Quran, Sunnat and Ijma. Sometimes if any problem arises and there is no solution of that problem in Quran then in such a situation, to solve that problem the jurists of Islam compare that problem with the situations given in Quran, Sunnat and Ijma and after comparing both the situations, new rules are deduced by the exercise of reason. These new rules are known as Qiyas and these are also the primary sources of Muslim law.Qiyas does not purport to create new law, but merely to apply old established principles to new circumstances.
Modern Sources of Muslim law:-
• Custom:- Besides these sources, custom is also a principal source of law. It is superior to written law. Most Muslim laws are based on the customs and it is recognized as a legit means of a source of law. Custom can be defined as those crystallized practices which are followed by a community or group of people for a considerable period, which after a particular period becomes a governing norm in that particular society or community.
• Legislation:- In this modern period legislation is the primary source of Muslim law. Legislation is an act of Parliament that plays an important role in the formation of any law. The legislation provides a base and authenticity to the laws. After the independence of India, there has been a steep increase in legislation regarding the codification of personal laws.
After codification, any point dealt with by the codified law is final. The enactment overrides all prior law, whether based on custom or otherwise unless an express saving is provided for in the enactment itself. In modern society, this is the only way to bring in new laws. The parliament, in accordance with the needs society, constitutes new laws.
• Judicial Precedents:- Judicial precedents are also a primary source of Muslim law. The doctrine of stare decisis started in India from the British rule. All cases are now recorded and new cases are decided based on existing case laws.
After the establishment of British rule, the hierarchy of Courts was established. The doctrine of precedent based on the principle of treating like cases alike was established. Today, the judgment of SC is binding on all courts across India and the judgment of HC is binding on all courts in that state, except where they have been modified or altered by the Supreme Court whose decisions are binding on all the Courts except for itself.
• Equity, Justice and Good Conscience:- Sometimes, it might happen that a dispute comes before a Court which cannot be settled by the application of any existing rule in any of the sources available. Such a situation may be rare but it is possible because not every kind of fact which arises can have a corresponding law governing it. In such situation courts cannot refuse to the settle the dispute in the absence of law and they are under an obligation to decide such a case also. For determining such cases, the Courts rely upon the basic values, norms and standards of fair play and propriety.
In terminology, this is known as principles of justice, equity and good conscience. So, we can say that Equity, Justice and Good conscience are also paramount sources of Muslim law because wherever conflict arises in the interpretation of Muslim law, this principle is used by the courts either to formulate a new law or to carry forward existing laws.