Shariah law is a religious law that lays down governing principles for spiritual, mental, and physical behaviour that must be followed by Muslims. Regarded as God’s command for Muslims, Sharia law is essentially Islam’s legal system. Muslims believe sharia refers to the perfect, immutable values understood only by God, while Islamic laws are those based on interpretations of sharia. The Shariah prescribes both religious and secular duties and sometimes retributive penalties for lawbreaking. Sources of Muslim Law are classified into two kinds a) Primary sources and b) Secondary sources. By sources of any law means the original materials where the contents of that law are to be found and are made available to us. Study of these sources is necessary because without having any knowledge of the origin of a particular law, its proper explanation and interpretation are not possible.
Primary Sources of Muslim Law:
The four primary sources of Muslim Law are:
- The Quran
- The Hadith / Sunnah
- Ijma
- Qiyas
The Quran:
The word Quran is derived from the Arabic word “Qurra” and properly signifies, “the reading” or “that which ought to be read”. It is believed that the Quran is of divine origin and was revealed by God to the Prophet Mohammad for the benefit of mankind through the Angel Gabriel. Quran is the first source of Muslim law in point of time as well as in importance. It is the basis of Muhammadan law. The Prophet recited (hence the name, Quran) the words as divinely inspired.
Quran is in the form of verses. Each verse is called ‘Ayat’. There are 6237 verses in the Quran which are contained in 114 Chapters. Each chapter of the Quran is called ‘Sura’. The various chapters are arranged subject-wise and have their specific titles. About 200 verses deal with legal matters and out of these, only about 80 verses deal with personal law.
It is believed in Islam that the words and the verses of this holy book are made by Almighty God and not by any human being. The Prophet simply uttered these words on behalf of God. Thus, the Quran is a compilation of the very words of God, which are unchangeable and its authority cannot be challenged. It is the most authoritative source of Muslim law. If any specific meaning has been attributed to a particular verse of the Quran, either by Shia or by Sunni authorities then, the courts have no power to give any other meaning to that verse. The Courts, while administering the law, are not to put their own construction, as against the interpretation of the ancient commentators of established authority.
On many legal issues, the Quran is found to be silent. For new problems of society, no legal solutions were available in the apparent words of the Quran.
The Sunnah:
Sunnah or Sunna is the second primary source of Muhammadan Law. The meaning of the word ’Sunnah’ is the precept of the Prophet. The word Sunna means “the trodden path”. Thus Sunnah is some kind of practice or precedent or traditions of the Prophet. Where the words of God could not supply authority for a given rule of law, ‘Prophet’s own words’ were treated as an authority because it is believed that even his own sayings derived inspiration from God. Whatever the Prophet said or did without reference to God, is treated as his traditions. Traditions are narrations of law and religion which were communicated from one generation to another and thus became the practices in the society. These two sources, viz., the Quran and Sunnah, are direct and indirect revelations and may be said to form fundamental roots of Islamic law.
What the Prophet said what he did and also his silence in a question put before him, was all taken to be authoritative and become a precedent.
- Sunnat-ul-Qaul (words spoken by the Prophet) which means the utterances or the sayings of the Prophet.
- Sunnat-ul-Fail (conduct by the Prophet) which means the behaviour of the Prophet.
- Sunnat-ul-Taqrir (silence) which means the ‘silence of the Prophet’ in answer to a question which was put before him for his decision. It includes some pre-Islamic customs which were not disapproved by the Prophet. He allowed the continuance of some customs in the society by his silent approval.
There are many traditions of doubtful origin. Narrators of such traditions are unknown persons. On several occasions, the prevalent customs were treated as a rule of law in the name of the practices of the Prophet.
Ijma:
This source of law active when the Quran and traditions (Sunnah) could not supply any rule of law for a new problem. Persons having knowledge of the law were called Mujtahids (Jurists). The Jurists used to agree unanimously and gave their common opinion over that point and their unanimous opinion is known as Ijmaa. It is the third primary and important source of Islamic law.
When a number of persons who are learned in the Muslim law and have attained the rank of jurists of some sort, agree on a particular legal question, their opinion is binding and has the force of law. This source of Muslim law has a very important role in the subsequent development of Muhammadan law because; through Ijma it was possible to lay down new principles in accordance with the changing needs of the Islamic society. Ijmaa must also be carefully distinguished from bidat, i.e., mere hearsay or novelty, and from raj, i.e., free opinion.
The process of formulating a law through the consensus of the jurists was called Ijtihad which means a process of one’s own reasoning to deduce a new rule of law. When a new principle of law was required, the jurists (Mujtahids) used to give their concurrent opinion and a new law was laid down. The jurists were not free to give decisions without any basis. They had to justify their opinions in the light of some well-settled principles already given in the Quran or the traditions (Sunnah). Public policy. Besides they had to consider the equity and the interest of the community.
Qiyas:
The fourth important source of Muhammadan law is the Qiyas, i.e., a collection of rules or principles by the methods of analogy and interpretation from the first three sources. All the three sources the Quran, The Sunnah, and Ijmaa 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.
The general principle behind the process of qiyas is based on the understanding that every legal injunction guarantees a beneficial and welfare satisfying objective. Thus, if the cause of an injunction can be deduced from the primary sources, then the analogical deduction can be applied to cases with similar causes. For example, wine is prohibited in Islam because of its intoxicating property. Thus qiyas leads to the conclusion that all intoxicants are forbidden. It is to be noted that in this method new principles were not formulated. The law was simply discovered from the spirit or the implied meaning of the text.
Thus a similarity was established between the new problem (for which the law was required) and an identical problem given in the text. For establishing similarity, ‘reason’ or the sense behind a text was taken into account rather than the meaning of its apparent words. In this manner, the ‘common cause’ (Illat) of the two problems was found and the analogy was established between the given problem and a similar problem available in the text. After establishing the analogy, the solution to the problem given in the text was applied to the new problem.
Secondary Sources of Muslim Law:
Urf or Customs:
Customs are fundamentally rehearsed that individuals follow ceaselessly for an extensive period. Customs was never recognized as a source of law but was sometimes considered supplementary. Not every custom holds importance in Muslim law. Custom must meet four characteristics which are mentioned below:
- It must be ancient.
- It must be territorial.
- It must be applicable to everyone.
- It must be continuous and noticeable.
- It must not oppose the public policy.
- It must not oppose the Quran or Ijma.
Judicial Precedents:
Judicial precedent refers to the procedure by which judges follow earlier decisions in cases with relatively similar facts. The idea of judicial precedent is based on the principle of stare decisis, or conforming to what has already been declared. It includes the decisions given by the Privy Council, the Supreme Court and the High Courts of India. It acts as precedents for future cases. Judicial decisions are supplementary to Muslim law. To some extent, judicial decisions have modified Muslim law. For instance, in Shayara Bano vs Union of India, the Triple Talaq practise was held unconstitutional, being arbitrary in nature.
Legislation:
Legislation as per Cambridge Dictionary has been defined as “a law or set of laws suggested by a government and made official by a parliament.”The importance of legislation may be seen in the fact that, on the one hand, it establishes rules and procedures through the parliament, while on the other hand, it has state-level authority. Muslims are governed by various legislations passed by many legislatures, which have considerably supplemented the Muslim law. Some of them are:
- Guardian and Wards Act, 1890
- Shariat Act, 1937
- Muslim Women Protection of Right and Divorce Act, 1986
- The Mussalman Waqf Act, 1923
- The Dissolution of the Muslim Marriage Act, 1939
Justice Equity and Good Conscience:
One of the origins of Muslim law is the idea of fairness, justice, equity, and excellent conciseness. These Islamic legal doctrines are known as ‘Istihsan’ or ‘Juristic Equity. According to Abu Hanifa, the man has been endowed with intelligence to use his common sense to do what he thinks fit. Several portions of Muslim law have been modified so as to meet the changing conditions in India.
There is a range of judicial decisions that have given a new dimension to Muslim law.
- In Shah Bano Begum v. Md. Ahmed Khan, 1985 (2) SCC 556 case, the apex court held that Muslim women have a right to ask for maintenance under Section 125 of CrPC irrespective of Muslim Personal Law.
- In Maini Bibi v. Choudhry Vakil Ahmad, 11 December, 1924 case, the Court held that a widow possesses the proper to maintain the assets of her husband till her dower money becomes paid.
- In Shayara Bano v. Union of India, 22 August, 2017 case, the apex court held the system of instantaneous divorce by the utterance of the phrase ‘Talaq’ thrice orally unconstitutional because the proper to instant divorce is only with the men and now not women. Besides, the system is unfair, and for this reason, violative of Article 14. Consequently, the judiciary has assisted with the improvement of Muslim personal regulation.
Conclusion:
Sources of Muslim Law are classified into two kinds a) Primary sources and b) Secondary sources. The Quran, The Sunnah, Ijma, and Qiyas are the primary sources of the Muslim Law. While customs (urf), legislations, judicial precedents, justice equity and good conscience are considered as secondary sources of the Muslim Law. Sects of shias does not accept the Qiyas as source of Muslim law. It is due to the contribution of all that an orderly and systematic theory of personal laws of Islam came into existence which governs the Muslim community.