SOURCES OF MUSLIM LAW

CONCEPT OF MUSLIM LAW

In India, whenever any personal matter comes before the court of law, the first and foremost question that arises is “which law applies to the parties in litigation”. If the parties are Hindu, Hindu laws will apply; and so on. In a similar way, for safeguarding the rights of Muslims, Muslim laws will apply to the parties concerned.

One of the fundamental tenets of Muslim law or Islamic law is known to be originated from the divine and not like the man-made laws. Islam signifies the submission to the will of God and means peace, purity, salvation and obedience. Another important principal “tawhid” means that God is one, that is Allah.

SOURCES OF MUSLIM LAW[i]

The sources of Muslim law can be studied and divided in the following categories:

  • ANCIENT SOURCES:
  • The Koran
  • The Sunna
  • The Ijma
  • The Kyas.
  • CUSTOMS
  • MODERN SOURCES:
  • Equity, Justice, and good conscience;
  • Precedent;
  • Legislation.

ANCIENT SOURCES:

  1. THE KORAN: Containing about 6,000 verses, the Koran is the fundamental source of Muslim Law. The rules and the principles of law are laid down only in that portion of the Koran which was revealed to the Prophet at Madina. The revelations made at Mecca pertain to theology, Islam and philosophy of life. The faithful believes that the Koran, the holy book of the Muslims, does not merely contain the divine revelation, but it has existed from eternity. It is a book which shows the right path to human beings, which distinguishes truth from falsehood, and right from wrong. The contents of the Koran have. spiritual value. Since the Koran is of divine origin, it is postulated that Muslim law cannot be changed or modified by any human agency. Thus, in India, the Muslims proclaim that their law cannot be reformed by the Union Parliament or the State Legislature.

Although the Koran is not a code of law and the Prophet was not a law-giver, the Muslim jurists and scholars have interpreted it as a code, and the classical jurists worked out a body of rules of construction applicable to the legal norms found in the Koran.

  1. THE SUNNA: The term “Sunna” literally means “a path, a procedure, a way of action”, Le, some kind of practice and precedent. In Muslim law, the term has come to mean the utterances, deeds and the practices of the Prophet. It also includes the unspoken approval of a course of conduct. The sunna must be distinguished from the hadis; the latter term is applied to the story of a particular instance or occurrence, while the former is the rule of law deduced from the instance or occurrence, i.e., the practice of the Prophet or his model behaviour. The sunna differs from the Koran inasmuch as the Koran is said to contain the very words of God, while the sunna embodies the practices, the deeds, the actions and the approvals of the Prophet. The sunna, whether considered as a body of traditions coming down from the Prophet as well from his Companions, Successors, and Successors of Successors, or from the general body of the ulema, or coming only from the household of the Prophet is a very important source of Muslim law.
  1. THE IJMA: The Hanafi law-givers unequivocally assert that the law must change. with the changing time, or, as Malik puts it, new facts require new decisions. The ijma, i.e., the consensus of the learned, is a fundamental aspect of the Sunni jurisprudence. According to the Sunni doctrine, the Muslim mujtahids (jurists) alone can have a say in the formation of the ijma. The mujtahid must be deeply learned in the science of law, and he must possess the power of rendering correct judgment and of making analogical deductions. In matters of law, ijma of the entire community is not acceptable. It is the ijma of the learned which has precedence and is authoritative.
  1. THE KIYAS: The kiyas is the fourth ancient source of Muslim law. Derived from the Hebraic term “hiqqish” and from an Aramic root, meaning “to beat together”, the “kiyas” signifies analogical deductions. In Arabic usage, kiyas means “measurement”. Kiyas should be distinguished from ray, istihasan and istihbab. The term “ray” (opinion) signifies individual opinion or reasoning, ie, sound, considered opinion. When it is directed towards achieving systematic consistency and guided by the parallel of an existing institution or decision, it is called kiyas, ‘analogy’, part of reasoning. When it reflects the personal choice and discretionary opinion of a lawyer, guided by his idea of appropriateness, it is called istihsan or istihad, ‘approval’ or ‘preference.

CUSTOMS:

As early as 1868, it came to be an established rule in Hindu Law that a custom, if otherwise valid, overrides a rule of sacred law. A similar rule was laid down by the Privy Council in respect of Muslim law in the early part of the twentieth century. The Privy Council laid down this rule in respect of those converts to Islam who chose to change their religion but preferred to retain their personal law. The orthodox Muslim opinion reacted strongly against this decision by asserting that he can be governed by no other law but by Muslim law. This resulted in the passing of the Shariat Act, 1937. The jurists of all the schools of Muslim law have maintained that there are only four formal sources of law, the Koran, the Sunna, the ijma and the kiyas, and custom is not a formal source of Muslim law. But no Muslim jurists (barring those of the Shia school) have ignored the role of custom in the evolution, formation and development of law. Some of the Muslim countries, where Muslim law has been codified and reformed, expressly provide for the application of custom. Thus, in the Ottoman Code, it has expressly been laid down that: (i) custom is authoritative and can be invoked as a ground for a legal precept; (ii) public usage is conclusive and action must be taken in accordance therewith; and (i) a matter sanctioned by custom is as if stipulated in a contract.)

It appears that for the acceptance of custom, the Muslim jurists laid down four conditions: (a) custom must be of regular occurrence, i.e., it must be continuous and certain, (b) it should be universal (it seems that community custom has no place in Muslim law, though local custom has), (e) it should be reasonable, and (d) it should not be in contravention of any express text of the Koran or the sunna. It seems that custom in Muslim law need not be ancient or immemorial

MODERN SOURCES:

  1. EQUITY, JUSTICE AND GOOD CONSCIENCE: In most systems of law, something akin to the English doctrine of equity, justice and good conscience has existed. Muslim law is no exception to this universal phenomenon. Istihsan of the Hanafi school, and the doctrine of maselihul mursala of Malik, are near to the English doctrine of equity, justice and good conscience. Istihsan is used to override the kiyas.
  2. PRECEDENT: The common law doctrine of precedent has never been a part of Muslim law, the decisions of a Kazi never constituted a precedent in the English law sense. The nearest approach to this doctrine in Muslim law are fatawa. opinions of the jurists, which have great persuasive force. The fatawa possesses not merely moral sanctions but also legal authority. The mufti whose function was to search out the law applicable in a given case, was supposed to look after the interest of the people not merely in this world but in the world hereafter. Thus, a fatawa pronounced by a mufti or a scholar, had great authority as well as sanctity, yet the kazi was not bound by it. It of which the was discretionary for him to follow the fatawa, or if he thought it fit in hit judgment, he could ignore it and render an independent decision. various collections. of fatawa, of which the Fatawa-al-alam-giriyya is the most famous fatwa.
  1. LEGISLATION: Islamic law has not known anything like the modern legislative assemblies. The Hanbalis did recognize administrative regulations, side by side with the sharia, which were called by them nizam (ordinance, or marsum or decree). There have existed other administrative regulations called farmans and dastural-amals which related to gift of land under feudal tenures. Neither nizamı and marsum nor farmans and dastural-amals related to the personal law.

The Shariat Act, 1937, was passed with a view to making Muslim law applicable. to the Muslims in those matters where they were governed by a different law. Similarly, the Mussalman Wakf Validating Act, 1913, was passed to validate the wakf for alal aulad. There are several other statutes which modify some or other aspects of Muslim law. Thus, Ss. 107-108, Evidence Act, 1872, modify the Muslim law of presumption of death, Majority Act, 1875, affect the Muslim law of majority, Guardians and Wards Act, 1890, modify the Muslim law of guardianship, the provisions of the Succession Act, 1925, relating to administration of estates apply to Muslims with the execution of Chapters II and VII. Some provisions of the Transfer of Property Act, 1872, and the Dowry Prohibition Act, 1961 apply to Muslims. Ss. 125-128 of the Criminal Procedure Code, 1973, modify the Muslims law of maintenance, the Administrator General’s Act, 1913. apply to Muslims. The following statutes either modify or codify the Muslim law of Wakfs: Mussalman Wakf Validating Act, 1913-1930, Wakf Act, 1954, the Wakfs Acts of Bengal (1934), Bihar (1947), Uttar Pradesh (1960) and Jammu and Kashmir (1959) and the Dargah Khawaja Saheb Act, 1955. Then there are the Kazis Act, 1880, and Haj Committee Act, 1959. There are several State statutes which either modify or abrogate the Muslim law of pre-emption these are the Bhopal Pre-emption Act, 1934, Berar Land Revenue Code, 1928, Rewa Pre-emption Act, 1946, Agra Pre-emption Act, 1922, Oudh Laws Act, 1876, Rajasthan Pre-emption Act, 1956, Jammu and Kashmir Pre-emption Act.

SOURCES:


[i] DR. PARAS DIWAN, MUSLIM LAW IN MODERN INDIA 30-43 (Allahabad Law Agency 2018).

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