The Quran (Koran)

The Quran is considered by the Muslims as the basis of their law. Every word of the Qur’an is regarded as being the Direct utterance of the Almighty, communicated in his actual words by the angel Gabriel to the Prophet. The prophet recited the words as divinely inspired. These sayings were not collected or written down by the prophet himself, but by his companions immediately after his death. Most of the legal principles are to be found in that part of the Koran which was revealed to the Prophet at Medina. In case where a particular passage of the Quran was interpreted in a particular manner both in the Hedaya and Imamia, the Privy Council held that it was not open to a Judge to construe it in a different manner.

The Sunnah (Sunna)

The second source of law, is sunnah! ie the precept of the Prophet. The word sunna means the trodden path, thus it is some kind of practice or precedent of the Prophet.

Sunna is distinguished from Fyzee calls hadith and ahadis. Hadith is the story of the particular behaviour.  These two source viz the Quran and Sunnah are direct and indirect revelations. One of the greatest difference between the Sunnis and Shias is that the Shias do not give credence to a hadith unless it emanates from the household of the Prophet from the household of Ali.

The Sunnis regard the following as the most widely recognised authentic treatises. Bukhari, Ibn-e-Majah, Abu Daud, Tirmidhi and Nasai.

The Shias on the other hand are most authentic. Al-Kafi and Tahdhib ul Ahkam.

Ijmaa and Ijtehad

Ijmaa consensus of the founders of the law or of the community as expressed by the most learned members is another important source of Islamic law. When a number of persons who are learned in the Muslim law and have attained the rank of jurists, agree on a particular legal question, their opinion is binding and has the force of law. Ijmaa must also be carefully distinguished from bidat. Ijtehad refers to an intellectual endeavour to seek solutions of day to day matters. Ijtehad could be used to evolve the method of performing the rituals. It is for this reason that the Koran itself lays a great deal of stress on rational analysis or Ijtehad.

Qiyas

The fourth important source of Muhammadan law are the Qiyas ie. A collection of rules or principles by methods of analogy and the interpretation from the first three sources. All the three sources referred to above could not suffice the growing needs of a community which had their ideas expanded by the great territorial strides that Islam had made in the course of the century. This new source took the form of reasoning by analogy from the other sources. This is called Qiyas.

Customs and usages having the force of law.

Muhammad law does recognise the force of custom and usages in establishing rules of law. The validity of customary law rested on principles similar to ijmaa. As regards the customs prevalent in the time of the Prophet., his silence as to theses customs had been regarded as recognition of these customs. Whenever the questions of the applicability of custom arises one has to consider two questions

Whether the custom is proved, which is a question of fact and

Whether it is binding which is a question of law.

Fatawas or Fatwas

Though strictly speaking not exactly a source of law, fatwas or opinions of Muftis learned in Islamic Law, on reference made to them are important as they have been instrumental in the development and enrichment of Muhammadan law.

Muslims believe that a fatwa carries more weight than a random opinion of any person. Muslim scholars are expected to give their fatwas based in religious scripture and not their personal opinions. Although a fatwa is not legally binding, it is nevertheless respected as an interpretation of a particular aspect of Muhammadan law given by a Mufti. There are four sources from which Muslim scholars generally extract religious laws namely the Quran, the Sunnah, ijtihad and consensus of Muslim scholars.

Legislation

Through Muhammad law is India is not codified, yet some aspects of Muhammadan law have been regulated by Acts of Legislature. The Shariat Act 1937,the Dissolution of Muslim Marriage Act 1939, the Mussalman Wakf Validation Act 1913 and some instances of such legislation.

Justice equity and good conscience

Where there is a conflict of opinion and there is no specific rule to guid the court, the Court follows ghat opinion which is more in accordance with justice, equity and good conscience. Where the law analogically deduced is inadaptable to the present needs of the society or where it’s rigid application would result in hardship to the public rules of equity could be applied. Abu Haifa, the great jurist called this Istihasan.

These are the sources of Muslim Law.

Aishwarya Says:

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