Sources of Muslim Law
Sources of Muslim law Source of modern law are Legislation, Precedent, Custom and Conventional Convents. But totally differing from this modern concept, sources of Muslim law are Qur-an. Sunna, Ijma’a and Quiyas.
The words Qur-an means, ‘to be recited’. Qur-an itself qualifies it as Kalamulah (speech or words Allah) Al Kitab (The divine book) and Al-Furkhan (leading towards truth distinguishing truth and false)
Muslims believe in four Divine Books revealed for men. Thourath or Thora given to Prophet Moosa, Zaboor or Pslms given to Prophet Daveed, Engeel or Testament given to Prophet Easa (Jesus) and Furkhan or Qur-an revealed to Prophet Muhammad are the four Divine Books.
Qur-an undoubtedly declares that Easa (Jesus) is not the son of God and only a Prophet of the God, and never crucified. Thus Muslims opposed calling Christ (means crucified) with the name of Jesus as wrong and forbidden which is against the teaching of Qur-an.
In Muslim law, Jews and Christians whom Qur-an called as Yahooda and Nasara are commonly called Kitabia. The word Kitabia means those whom given Kitab or Devine Book. Qur-an says that Kitabees are more related to Muslims. Thus Qur-an permitted their chaste woman and their food to Muslims.
Qur-an is the compilation of a series of communication from Allah to Prophet Muhammad through angel Gibreel on a great number of occasions during the last twenty years of his life started from the first incident at the cave of Hira starting “Read on the name of your lord who created you” and ended during the farewell Hajj pilgrimage concluding, “This day I have perfected your religion for you and completed my favor upon you and have chosen for you Islam as your religion, but if any is forced by hunger with no inclination to transgression Allah is indeed forgiving and most merciful.”
In Qur-an Prophet is addressed throughout in second person and it was revealing to the Prophet giving rulings and directions as and when required to the circumstances.
The Prophet reported to have said that when Qur-an reveals to him he felt as if it were the painful sounding of a bell and even in cold whether he bathed in sweat. He used to recite it to his disciples soon after such revelations.
Holy Qur-an is in the form of poetic verses which can be receipted on beautiful melodious tone. It contains about 6666 verses divided into 114 chapters. In each time of revelation, the Prophet would direct his scribes to add that portion in such and such chapters and in such and such places. Thus in the life time of the Prophet itself, Qur-an was compiled and used to recite by the Prophet himself and his companions.
The Prophet’s scribe Zyed bin Zabit kept a complete form of the Qur-an and after the Prophets death he handed over the copy to Khaleefa Abu Bakkar who entrusted it to Ummu Hafsa wife of the Prophet and daughter of second Khaleefa Umer. Many other copies of Qur-an written and collected by various disciples of the Prophet were popular during the period Abu baker and Umer. The third Khaleefa Usman, on the advise of his army chief Hudaifa ordered to prepare an authentic edition of Holy Qur-an. The work was entrusted to Zayed bin Zabit who was the scribe of the Prophet. Thus an official copy is prepared and Khalifa Usman sent its copy to every quarter of the countries of Islam. Other editions of Qur-an were suppressed by Usman’s order. Usman’s edition of Qur-an handed down to us unaltered and there is probably no other book in the world which has remained thirteen centuries with so pure a text .
There are only about five hundred verses of the Qur-an bearing on questions of law and only 78 of them are concerned with personal law. The verses of Qur-an embody only broad principles scattered in various place. The absence of systematic arrangement is explained by the circumstance that it was gradually built up during the life time of the Prophet, in accordance with the exigencies of each special case arising in the midst of a simple society. Method of Qur-an is teaching principles of law among moral principles, philosophy of life with promise of reward to good deeds and warning to wrong doers. Qur-an contains several historical narrations, stories and prayers also.
2. Sunna (Traditions of the Prophet)
The word Sunna means the ‘path’ and it is the practice and the precedents of the Prophet. It is the proper practical application of the basic principles of Islam embodied in the holy Qur-an. Qur-an and Sunna are the basic sources of Muslim law. The last portion of the Prophet’s address in the farewell pilgrimage is notable here. “I am leaving you two things, the Book of Allah and Sunna of His Prophet. If you follow them you will never go astray.”
This sources of law handed over to the Muslim community through rightful disciples of the Prophet and available through authorities of schools of law which are discussed below in separate head.
Hadis is now considered as the important source of Sunna. Sunna and Hadis are different but both words are interchangeably used in law books. What the Prophet said or did is called Hadis. Sunna is the rule of law deduced from the practice of the Prophet, his noble behavior. The study of Hadis developed only after the formation of Sunna through various schools of law. (Madhab)
In the early years of Islam, keeping Hadis in written form was not recommended. The Prophet prohibited writing of his own words. The Prophet ordered that none of his words except Qur-an shall be recorded in writing. The second Khaleefa Umer ordered to destroy all Prophetic words if anybody kept them in writing. He said, he feared mingling of the words of Prophet with Qur-an, the words of Allah. Thus Hadis were not collected and preserved during the early years of lslam. This fear removed only after the preparation of official and authentic copy of Qur-an during the period of Usman. But after this great event, the Muslim world came in to chaos with its extreme end at the Karbala massacre and then the Muslim world divided in to two, the Shia and the Sunni. After about seven decades of this uncertainty peace returned to Muslim world when Umar- bin-Abdul Aziz appointed as the governor of Makka and subsequently on AD 717 when he became the Khaleefa. He was popular as second Umer and he ordered permission to collect and preserve Hadis in written and codified form.
The first collection of Hadis and Sunna was Mu-atha of Imam Malik. (died AD 754). This book is considered as most authentic book of Hadis. He collected about 10,000 traditions of the Prophet. He omitted 8000 of these 10,000 and the Mu-atha in its final form contains only about 2000 traditions.
The difference between Sunna and Shia law are starting from the acceptance of Hadis. Shia law accepts the traditions which reported from the family members of the Prophet alone especially from the family of Khaleefa Ali. But Sunni law accepts the traditions of truthful disciples of the Prophet without any distinction to the family members including Khaleefa Ali.
There are so many collections and book of Hadis. The most trustworthy of the various collections of Sunni tradition is Zahih-ul-Bukhari. It was compiled by Abu Abdulla Muhammed bin Ismail a native of Bokhara (the place is now in Uzbekistan). His period was from Hijra 194 to 266. He dedicated his life to collect, to testify and to compile reliable traditions. He collected more than six lakh traditions and reduced this vast number of reports to less than 3000 Hadis. That is less than one out of 200 traditions circulated in his day could pass his test.
The authoritative collections of Hadis under Sunni law are collections of Bukhari, Muslim, Thirmidi, Ibbn Maja, Abu Davud and Nasai which are collectively known as Sihahu Sitha means trustworthy or reliable six.
Tradition are to explain, but cannot repeal a Qur-anic text. No tradition can be received which is contrary to the Holy Qur-an.
The word Ijma’a means consensus. It is the unchallenged agreement of all Jurists of Islam of a particular period on a question of law. Its authority is based on a well known Hadis “My people will never agree on what is wrong”. (Ummathee la tajthamioo alal khatae va ala dalalathi).
After the Prophet, the divine source of law ended and a large number of new problems had to be solved with changing time. According to Imam Shafie, legal knowledge derived from Ijma’a . The jurists therefore took recourse to the principle of Ijma’a or consensus of opinions.
Qur-an says “If any one contends with the Prophet even after the guidance has been plainly conveyed to him, and follows a path other than that becoming to men of faith, we shall leave him in the path he has chosen and land him in hell..” Ijma’a is source of law because of this saying of Qur-an that ‘to be followed is the path of the men of faith’ and the Prophet’s saying that “My people will never agree on what is wrong”.
Another reason for the acceptance of ljma’a as a source of law is the declaration of Qur-an and Sunna that there will be at least some people in the world who are in true faith and straight path, lest Allah will destroy the world. Thus the agreement of all Muslims on a particular period will be the agreement of these men of faith also which should be correct and to be followed. So the error comes from separation but on the community as a whole there is no error concerning the meaning of the Qur-an the Sunna and analogy
The election of first Khaleefa Abu baker was the first instance of Ijma’a. Ijma’a once established cannot be repealed and no question of overruling of Ijma’a. Thus Ijma’a already establish through schools of law is the unchallenged source of law. The universally accepted rule Ijma’a is that the doors of ljma’a closed by the formation and perfection of schools of law (Madhab) within three centuries after the Prophet.
The Arabic word Quiyas means analogy. It is analogical deduction or the argument from the known to the unknown. It does not purport to create a new law but merely to apply old established principles to new circumstances. This is reasoning by analogy.
Shia Muslim does not accept Quiyas as a source of law because they have their Imam as a source of law in such cases. The Hanbali School of law among Sunni school are also not accepting Quiyas as a source of law. Instead they will seek liberal interpretation of Sunna so as to fit to the case. .
Quiyas is more a principal of interpretation than a source of law. Ijithihad (Personal reasoning) lsthihsan (Juristic preference) Ikhthilaf (disagreement) are other principles of interpretation of Muslim law
According to imam Shaffie, on all matters touching the life of a Muslim, there is either a binding decision or an indication as to the right answer. If there is a decision, it should be followed. If there is no indication as to the right answer, it should be sought by Ijthihad and Ijthihab is Quiyas
The base and reason to accept Quiyas as a source of law is the following tradition. When Mu-ad bin Jabal was appointed as governed of Yemen, the Prophet questioned him how he would Judge. The conversation was like this;
Prophet: On what shall you base your decision?
Mu-ad: According to the Qur-an
Prophet: and if you not find there in?
Mu-ad: then upon the usage of the Prophet
Prophet: but if that also fails
Mu-ad: then I shall strive to interpret my own reason.
The Prophet approved it and praised Allah that his servant was on the right path. Quiyas does not involve the laying down of new principle but it is a kind of permissible exegesis upon some text.
5. Legislative Interventions in India.
In India, the Muslim law is not free from legislative and judicial intervention. Some legislation and Judicial precedents added and some times altered the pure Muslim law in some matters.
The dissolution of Muslim Marriage Act 1939, Muslim women (protection of Right on Divorce) Act 1985, The Waqf Act 1995 (As Amended in 2013) are legislative additions to Muslim law affirming the Shariath.
The Caste Disabilities Removal Act 1850, The Child Marriage Restraint Act 1924. The Special Marriage Act 1954 and The Code of Criminal Procedure 1973 etc are enactments which affected some provisions of the Muslim law.
This codification of Sunni Muslim law is inclusive of all such addition and changes as applicable to Court of Justice in India.