Sources of Muslim law

Sources of Muslim law 

(1) PRIMERY SOURCES

The word Quran has been derived from the Arabic word Quarran which means to read.

I)The Quran 

The word Quran which is the Divine communication and revelation to the Prophet of Islam is the first source of Muslim Law. It is the Paramount and universal authority of Muslim law. It contains the revelation of God to his Prophet Mohammad, through angel Gabriel. This it embodies the very word of God as they were communicated to the Prophet. The Quran in it's present form is a book divided into 114 Chapters and consists of approximately 6666 verses. The chapters were arranged under the personal direction of the Prophet, who used to ask the scribe present to insert the revealed passage in a particular chapter. Thus it is not arranged in chronological order, not by oversight but as commanded by the Prophet.

The verses if Quran are called What and the chapters of this Holy Book are called Sura. Not more than 200 verses are concerned with legal principales, and the portion at Mecca deal with the philosophy of life and Islamic religions. The Quran does not in any of it's portions profets to be a code complete in itself. It was given to the world in fragments, during a period of 23 years (609 to 632 AD) and it was never collected and arranged in the lifetime of the Prophet. Abu Baker (who succeseded the Prophet as khalifa, and died in 634 after a rule of two years) for the first time collected the various passages of Quran Another sixteen years elapsed and then Usman the third Caliph orders the second revision of the Quran in 650 AD i,e. 18 years after the death of Prophet, it took the textual form in which we have it at the present day. The arrangement of the whole Sacred Book into chapters, was completed under the supervision of the following expert - Zaid, the son of Thabit; second, Abdullah, the son of Zubair, their Said, the son of As ; and fourth Abdul Rahman, the son of Harith. The work was completed after careful scrutiny and comparison with other fragments and presented to Khalipha, who caused a number of copies to be made and sent them to different centres of Islam and these because texts for all subsequent copies of the Sacred Book. The fragments in the possession of different people were recoverd and burnt. The Prophet (PBUH) encouraged his companions to write and learn the text of the surahs by heart. The attachment of the Muslim to the Sacred Book was so great that it has retained it's purity, without the least change, for the last one thousand and three hundred years.

      The style of the Quran is the most beautiful, fluent, concise, persuasive and possesses great force of expression. It is composed neither in poety not in simple prose being well selected and beautifully placed.

        A very small portion of it has any reference to law laying down the broad general principales concerning with marriage, dower divorce and inheritance. Broadly speaking it can be pointed out that---

(a) Quran is the primary source of Muslim law, in point of time as well as in importance. Quran is the first source of Muslim law. The Islamic religions and Islamic society owes it's birth to the word of Quran. It is the Paramount source of Muslim law in point of importance because it contains the very words of God and it is the foundation upon which the very structure of Islam rests. Quran regulates individual social, secular and spiritual life of the Muslims.

(b) It contains the very words of God as communicated to Prophet Mohammad through angel Gabriel.

(c) It was given to the world in fragmentary forms, extending over a period to twenty three years.

(d) It originally had for it's objects (I) repealing objectionable customs, such as usury, unlimited polygamy and gambling, etc., And (ii) effecting social reforms, such as raising the legal  status of women and equitable division of the matters of inheritance and succession.

Quran as a Source of Law

The contents of Quran may be classified under the four heads 

1}Metaphysical and abstract;

2} Theological;

3}Ethical and Mystical;

4}Rituals and legal.

We are here concerned with the legal aspect only. The rules of Islamic law occur in the following chapters of Quran - Al- baqara - cow, Al - nise - women Al - Imran - the family of Imran, Al - maidah - the food, An - nur -the light and Bani Isreal - a family of Isreal.

There rules relate to --

(a) Reform in unlawful heathen customs, such as infanticide, gambling, drinking of  intoxicants usury, polygamy etc.

(b) Social Reforms, such as marriage, position of women, divorce, chastity of men and women, texts relating to which came to be qusted subsequently in connection seculusion, succession etc.

(c) Criminal laws relating to punishment for theft fornication, murder etc.

(d) Direction relating to the treatment of enemy the distribution of booty etc.

(e) International law of war and peace and direction relating to the treatment of non- Muslim and their protection of rights.

Validity of Laws Revealed before Islam

Regarding the validity of laws revealed before Islam, there is difference of opinion among Jurists. The Hanafi doctrine is that only such laws of previous religions are binding as have been mentioned in the Quran without disapproval. This restrication is due to the fact that the teachings of previous religions have not been transmitted of previous religions have not been transmitted to us in the original form revealed to God 

(2) The Sunnat and Ahadis(Traditions)

It is the belief of Muslim that revelations we're of two kinds--

1- Manifest (zahir) and 2- Internal( baton )

Manifest revelation consisted of the communication which were made by the angel Gabriel under the direction of God to Mohammad in the the very words of God Quran is composed of mainfest revelations. Internal revelation consisted of the opinions of the Prophet and delivered from time on questions that happened to be raised before him. Sometimes, it happened that no direct revelation came to the Prophet and in the meantime some question had to be decided. In such circumstances, the Prophet exercised his own judgement and frequently consulted his companions. The ideas contained in such opinions of the Prophet were inspired by God . During his lifetime, the Prophet pronounced his verdicts , did certain things and also allowed tacitly the doing of certain things permitted by Islam. Consequently 

'' what was said or done or upheld in silence by the Prophet " becomes a primary source of Muslim law, second in point of time and authority, only to the pious Quran and is technically known as sunnat

Sunnat means the model behaviour of the Prophet . The narrations of " what of Prophet said , did or tacitly allowed". Is called Hadis or Traditions.

The Traditions, however ,were not reduced to writing during the lifetime of Mohammad. They have been preserved as Traditions handed down from generation to generation by authorised persons. That is why a minute inquiry is necessary to accept a Hadis. Thus when a Hadis is confirmed by one person, it is known a khabr - Al wahid and is a weak Hadis.

When a Hadis is proved by several declaration, it becomes a strong Hadis . The shais do not believe in a Hadis . Which is not derived from the house of the Prophet , particularly from the house of Ali . At the time of his death , Quran supplemented by sunnent fromed the whole body of Mohammadan law - Civil, Criminal and Religions. The important of Hadith as a important Source of Muslim laws has been laid down in the Quran itself :-

 The  Quran says :- "whatever the Prophet gives accept it , and whatever he forbids you abstain from it."

        It also says -- " He does not speak out of his desire . It is not but the revelation revealed to him."

'obey God and obey the messenger'

Once the Prophet said to his followers : " so long as you hold fast to two things which. I have left among you will not go astray, God's Book, and his Messengers Sunna."

Kinds of Traditions-- The Traditions are of two kinds :- 

1:- Sunnat and 2 :- Ahadis .

These two have been classified into the following three classes on the basic of the mode or manner in which it has actually originated :- 

(i) Sunnat- ul - fail., Traditions about which the Prophet did himself .

(ii) Sunnat - ul - tuqrir  i.e., The things done in his presence without his disapproval.

     Above are enumerated the three kinds of Sunnat . The three classes of Ahadis are given below. 

(i) Alhadis -i - mutwatir i.e, Traditions that  are of public and universal propriety are held as absolutely authentic. In such Hadis the chain is complete.

(ii) Ahadis -i - Mashhoor , i.e , Traditions which though known to a majority of people do not posssess the character of universal propriety.

(iii) Ahadis - e - wahid i.e. , Traditions which depend on isolated individuals .

Compilation of Hadis 

Generally two misconception have been spread about the compilation of Hadis , firstly they were orally transmitted and were not recorded during the period of the Prophet . Secondly the sense uttered by the Prophet could change during the oral transmission. 

Abu days and Darimi have narrated from Abdullah bin Amr bin Al As:- 

"What ever I heard from the Prophet I used to write it to learn it by heart . Some persons from the qureish objected to this and said that  the Prophet was a man and sometimes he was talking in anger and sometimes he was happy . At this I stop writing and also told this to the Prophet . He redered to continue writing and pointed with his finger towards his mouth and said after swearing in the name of God that nothing but the truth comes out of that. "

           Many books of Traditions were compiled by the comapinons of the Prophet. The remarkable ones are Sahifa  Sadiqa, shafia Ali Aahif Abu Baker Sahifa . Jabir Sahifa samura and sahifa sahia etc. The Traditions of these book have been narrated by famous traditionists like Bukhari , Abu Daud , Hakin , Zailai etc in their collection ,Perhaps this is sufficient to remove the misconception that the work of compilation of Hadis started one hundred years after the death of the Prophet .

  Abu Hurairah , a reputed authority on Hadith said , " None is a better keeper and narrator of Hadis than me except Abd Allah bin Amir bin Al- as . That is because he used to write whatever he heard from the Prophet.

         Ana's bin Malik the devout servant who lived with the Prophet all through his stay in Madina , and who died in 93 A.H. said , " Every now and then I took down. Notes on interesting points from what the Prophet said in his discourses and other occasions of conversation ; and I used to read these notes over to the Prophet whenever I found him having leisure , and after he had corrected them , I made a fair copy of them for my own record ."

3 The Ijma 

Ijma has been defined by Sir Abdul Rahim as " agreement of the Jurists among the followers of Prophet Mohammad in a particular age on a particular question of law ." Wilson defines it as concurrence , meaning propositions shown to have been accepted as indisputable under the first four "right direction" , Caliphs or in the time of the companions and of the generation immediately succeeding them .

         

           Under this collective name are included the explanation elucidations and decisions of the disciples of the Prophet . According to the classical theory , failing Quran and traditions , the consensus of opinion and amongst the companions of the Prophet is recognised as the best guide of law . Thus it is the third source of law , both in the point of time and importance.

       However , there is great difference of opinion among the important Muslim Jurists with regard to the requirements of a valid " Ijma " . Nevertheless there is general agreement that Ijma of the companions of the Prophet should invaluable be accepted .

     The authority of Ijma as a source of Muslim law is also founded on Quran and Hadith Quran says :-

      

       " O ye who believe ; obey God and obey the Prophet and those of you who are in authority , and if ye have a dispute concerning any matter refer it to God and the Prophet ."

" There can be no consensus on error or misguide behavior amongst my people ."

Importance of Ijma

The law is something living and changing . Social values are subject to content charges and these changes in the their turn affect law . Hanafi school is of the view that law must change with the changing of times . According to Maliki school , new facts require a new decisions . The aim of the law is to fulfil the needs of the society . The principle of Ijma is based upon the following texts : God will not allow his people to agree on an error and whatever Muslim hold to be good is good before God ." With the March of time , development of civilization and the expansion of the Islamic influence numerous problems arose which could not be decided be reference to only Quran and Hadis (Traditions). The Jurists , therefore , evolved the principle of Ijma . The laws are needed for the benefit of the community , therefore , the Divine legislator has deloged power to lay down laws by the resolution of those men in the community who are competent in that behalf , i.e, the mujtahids or Jurists . Since the Muslim religion does not admit the possibility of further revelation after the death of the Prophet, the principle of Ijma is the only authority for legislation in the present Muslim system .

Essential ingredients of valid Ijma 

The definition of Ijma has got the following ingredients :- 

(i) The consensuses -- The majority of the Jurists is of the view that unanimity is a pre - requisite for Ijma . It there is a dissension , although it is by a small minority . Ijma will not be constituted . However , some of the Jurists are of the view that Ijma may be constituted by majority also .

  The consensus may be reached three stages :-

(i) Firstly , the people express their views , Second disscussions and debates take place , Thirdly , the difference are dropped and they agree  on one point . Ijma constituted by majority is binding in action  but it is not obligatory to believe in it's truth also . It is not absolute like a person disputing it would become an infidel .

(ii) The Jurists - In  every field of knowledge , only the opinion of the exepts , therefore , only their opinions are relevents for Ijma . There are , however , two kinds of Religions matters . One which do not require any advanced knowledge for their recognition ; such as saying the prayers five times a day , keeping fast during the month of Ramsan etc. These matters do not call for any discrimination between the Jurists and the general public .

(iii) Jurists of a Particular Period  - there could be law laid down by Ijma during the Prophet life time  Ijma of one age may be reversed by subsequent Ijma of the same age . Similarly , Ijma of one age may be superseded by Ijma of a subsequent age . But the Ijma arrived at by the companions is incapable of being reversed or superseded .

(iv) Jurists to be the Muslims - The views of to the non - Muslim communities are not admission for Ijma .

(v) Condensed on a Religious Matter  --  The relegious matter may be of two kinds -- point of fact and point of law , Ijma on the matter that  the text of the Quran which is with us , is the same that was revealed to the Prophet is Ijma on point of fact. Ijma on the matter that the Government of the Muslim must have representative capacity and should run by consultation ,is Ijma on point of law .

Repeal of Ijma  

Repeal means abrogation of the level effect of text by means of anthors text . Ijma is not in itself a text . It is an opinion or judgment based on the authority of some text which may or may not be quoted along with :. The texts are contained anly in the Quran and the Sunnat . Thus , Ijma cannot repeal the Quran or the Sunnat.

         The doctors of Islamic Jurisprudence are generally of the view that  Ijma can neither repeal anything nor can be repealed by anything Bazdawi however , is of the view that a latter Ijma can repeal a former Ijma .

KINDS OF IJMA 

The Ijma is of three kinds :- 

(a) Ijma of the Companions of the Prophet :-

It is universally accepted throughout the Muslim world and is unrepealable . Abdur Rahim his book entitled Mohammad Jurisprudence says :- Great weight will be attached to the Ijma of the Companions were appointed with the viewpoint of Prophet and remaining close to the Prophet .

(b) Ijma of Jurists - So far this particular kind of Ijma is concerned there is divergence of opinion regarding - 

(i) the exact procedure of formation - which nowhere has been laid down , (ii) the exact number of Jurists necessary to form Ijma , (iii) whether the Ijma is by majority decision or by unanimous opinion , (iv) weather the decision of a Jurists should be preceded by reasoning and , (v) whether all of the Jurists should sit together to form Ijma.

(c)  Ijma of the People :- through in theory the opinion of Muslim population as a whole may have any important but in actual practice Ijma of Muslim public had no value with regard to legal matters , but in matters relating to religions , prayer and other observances of Islam as to prayers , fasting , pilgrimage and Prof rate have been established by Ijma of the people.

         The pro - Qiyas group also many Quranie text and Hadith in their support , few of which are as follows :- 

"As  far those similitudes we ate them for mankind but none will grap their meaning save the wise " (19;43)

 

" Learn a lesson ,  O ye who have vision to see "(59;2)

 The Prophet is reported to have said :-

"Give your rulinger is according with the (provision of the ) Book and the Sunnah if such are available . If you do not find such provisions , have recourse to you opinion and interpretation."

Legal authority of Qiyas as a Sources of Islamic law :-

Qiyas in the light of Holy Quran :- Holy Quran says , ". Spend out of your good things because as you dislike to take bad things , others also may dislike."

Qiyas in the light of Hadith :- In deciding legal issues , Prophet himself relied on the Quran and on Qiyas . Instructions to Muadh Ihn Jabal clearly shows how he approved Qiyas in deciding legal issues .

 

       According to Iman Abu Hanifa , by the process of Qiyas the propositions is diverted towards the Quran and Hadith. All the four Sunni schools  accepted Qiyas as valid Sources of law and in fact much of the Sunni law is evolved as a result of the recognition of this institution.

Conditions for the validity of Qiyas

(1)The original  source from which Qiyas is deduced must be capable of being extended that is , it should not be of any special nature.

(2) The law of the text must not be such that it's reason de'tre cannot be understood by human intelligent nor must it be in the nature of an exception to some general rule .

(3) The original order of the Quran or Hadith to which the process of Qiyas is applied should not have been abrogated or repeated.

(4) Qiyas should be applied to ascertain a point of law and not to determine the meanings of words used .

Secondary Sources

(i) Urf or Taumul (custom)

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

(ii) Judicial decisions 

The privy council decided many 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 presuasive value in the Supreme Court of India. This box of precedents will loss it's binding forces only it the Supreme Court over rules a particular decision, else where , an opinion seems to be forming that judge are now making the law the way early Muslim Jurists did.

(iii) Legislations 

God is the Supreme legislator as per Islam thus sometimes, legislative modification , are also treated as encroachment . Still , there are a few acts that modify or lay down principles of Muslim law and courts with respect to the content covered by them .

(a) The mussalman Waqf Validating Act, 1932 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 offecting the validity of it .

(c) The Muslim Personal law ( shariat ) Application Act , 1937 :- It reiterated  the Muslim  stand that custom could it be an independent source of Muslim law all the time observation of Amer Ali, he says that " when the great expounders of Musalman law have enunciated divergent doctrines or expressed different opinions , the Judge aadministering Musalman law is to adopt the one most conformable to equity and the requirements of the times.

Conclusion 

 

Therefore , thees are the sources of Muslim law . By study and what I understand about this sources of Muslim law are , they are srounded with Quran and Mohammed sahab.