Detail of Sources of Muslim Law (Shariah)

Sources of Muslim Law (Shariah)

Sources of Muslim Law (Shariah)

 

The Koran

Every word of Koran is that of God, communicated to the Prophet Muhammad through Gabriel (the angle). The Koran is not and does not profess to be a code of law or even a law book. However, it is an extremely important source of Mohammedan law.

     The Koran gave the idea that law is the direct Commandment of Allah.

     In Shyara Bano v. Union of India, the court while discussing the sources of Muslim Law or Shariat clarified the primacy of Quran over other sources of Islamic laws. Other sources of Islamic law can be resorted to only when they are not covered by Quran. Those sources can only supplement Quran but cannot be contradictory to it. If there is nothing in Quran or Hadith, one must follow dictates of secular reason on basis of principles of Shariat. Shariat means the totality of Allah commandments.

Hadith or Sunnah (Tradition)

1.     Hadith Mutwatir (Continuous). - Those which have received universal acceptance and are narrated by an indefinite number of men belonging to the categories of Companions, Successors and Successors of Successors.

2.     Hadith Mashhoor (Well Known). - These were reported by a limited number of Companions in the first instance and thereafter fulfilling the conditions of a continuous tradition.

3.     Hadith Ahad (Isolated). - These rest upon the testimony of one or more narrators, who are limited in number; not fulfilling the conditions of either of the above two classes.

The importance of Hadith as an important source of Muslim Law has been laid down in the Koran, emphasised by the Prophet, and has been recognised by his immediate successors and other companion, as well as by scholars and jurists of Mohammedan Law.     

Ijma (Consensus of Opinions)

Ijma has been defined as the agreement of the Muslim jurisconsults in any particular age on a juridical rule. The authority of Ijma as a source of law is founded on Koranic and Sunnah texts.

     A few of the important requirements for the validity of Ijma are: (a) It shall not come into conflict with Koran or Hadith; (b) Once a question is determined by Ijam, it cannot be reopened by individual jurists; (c) One Ijma may be reversed by a subsequent Ijma; and (d) When the jurists of an age have expressed only two views on a particular question, a third view is inadmissible.

Qiyas (Analogy)

With the conquests and the expansion of the Islamic State, and as centuries went by, new cases occurred which were not provided for in the Koran, the Sunnah or the Ijma. The jurists found themselves compelled, in seeking solutions, to have recourse to reason, logic and opinion. Analogy thus became the fourth source of the Islamic Law.

     Qiyas or analogy is a process of deduction by which the law of a text is applied to cases which though not covered by the language, are governed by the reason of the text.

Equality and the absolute good

These are sources which have their origin in equity or absolute good.

     Istihsan (Preference).- Qiyas has been accepted as a definite source of law, and it cannot be easily overridden. But in the presence of a basis stronger than Qiyas, such as a text of Koran, Hadith or Ijma,  the Qiyas would be set aside and the 'stronger basis' would be adopted through juristic preference or Istihsan.

     Deduction of the application of the source of law, like the setting aside of analogy in the presence of a stronger source, is called Istohsan or preference. Istihsan gave an elasticity and adaptability to Shariah.

Customs and usages

After the advent of Islam, the Koran and tradition took the place of custom, which lost much of its importance. Muslim Personal Law (Shariat) Application Act, 1937 was passed with the express purpose of repealing those customs which though contrary to Muslim Law came to be prevalent among Indian Muslims. Custom has thus now little to do with the development of Muslim Law.

Sunni Schools of Muslim Law

a)    The Hanafi School. - This is the most important of the four Schools of the Sunnis. Its founder was the Great Imam Abu Hanifa. The main features of this School are:

1)    Less reliance on traditions unless their authority is beyond any doubt;

2)    Greater reliance on Qiyas;

3)    A little extension of the scope of Ijma; and

4)    Evolving the doctrine of Istihsan, i.e., applying a rule of law as the special circumstances required.

b)    The Maliki School

c)     The Shafii School

The Hanbali School