Ancient Sources of Muslim Law

Prepared by

VANISHA WADHWA
(G.J.ADVANI COLLEGE OF LAW)
The impact of religion on human lives is very dominant and is therefore necessary to understand its
origins and sources. The birth of Muslim law was in Arabia where Prophet Mohammad formed Islam.
The object of Islam is to inculcate a feeling of dutifulness and submission to Allah.

Islamic law is a part of Muslim religious philosophy, giving functional articulation to the confidence,
which sets down how Muslim should act through his religion, both towards God and towards different
men. One of the main principles of Islam is the acknowledgment of the creation of the universe by
God and the prescription of certain behaviors that humans must observe. The sources of Muslim Law
can be understood by dividing it into:

1. Ancient sources
2. Customs ; and
3. Modern Sources

ANCIENT SOURCES OF MUSLIM LAW

The ancient sources of Muslim law are:
 The Quran
 The Sunna
 The Ijma ; and
 The Quiyas
These ancient sources act as the primary source and the remaining act as the secondary source. All
schools of Muslims accept the Quran and the Sunna as primary sources, whereas there is conflict of
acceptance and opinion with regard to Ijma and Qiyas among various schools of Muslims.

 THE QURAN: The Quran is considered to be one of the most essential and main source of
Muslim Law. Muslim law is founded and based on the Al-Quran, which is believed by Muslims
to entail the very essence of God. The word ‘Quran,’ has been derived from the Arabic word
‘Qurra’ which means ‘to read.’ The whole of the Islamic community owes its origin and
incarnation to the Quran. The Quran is considered to be the words communicated to Prophet
Mohammed by angel Gabriel. It acts as a reference of morality by stating as to what is right and
wrong and thereby governs the socio-cultural, secular and spiritual life of Muslims. Since the
origin of the Quran is considered to be not of the earth, the courts of law are given no authority to
alterchange the apparent meaning of the verses. In the case of Aga Mohammed Jaffer v. Koolsom
Bebee, a similar view was held. In case the Quran does not state its opinion on any particular
matter, the Sunnat is always taken as a guidance.

 Containing about 6,000 verses, the Koran is the fundamental source of Muslim law. Out of a total
of some 6,000 verses of the Koran, not more than 200 verses deal with rules and principles of law.
Of these 200 verses, only 80 verses relate to family law and the rest deal with State and polity.

These 200 verses lie scattered throughout the text of the Koran: they do not constitute a separate
code. Then, some verses are deemed to be abrogating verses and some the abrogated ones.
Generally, speaking the earlier verses are deemed to be abrogated by the later one.

The rules and the principles of law are laid down only in that portion of the Koran which was revealed
to the Prophet at Medina. The revelations made at Масса 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.

It is historical fact of great significance that the Koran was not reduced to writing during the life time
of the Prophet. The extant Koran was compiled from the version given by Osman, the third Caliph,
from his memory.

The work of compilation was undertaken during the Caliphate of Abu Bakr and Omar, under the
supervision of Hazrat Bin Sabit with whom other Kureishites collaborated. This version, known as the
Osman edition is considered to contain the authentic text of the Koran.

Since the Koran occupies a pre-eminent position among the sources of Muslim law, any study of
Muslim law should naturally being with the examination of the rules and principles contained in it,
howsoever scanty and insufficient these might be.

All the writers on Muslim law agree that the legal norms laid down in the Koran came into existence
as a solution to the contemporary socio-economic as well as political problems. In other words, the
Koranic verses dealing with legal norms came into existence as legal precedents of the Islamic society
of the early seventh century.
is like a Constitution for the Muslims . The Quran is the final authority on any issue related
to Muslim personal law. In a strict sense, the Quran cannot be called a legal code and Muslim
jurists agree that it contains verses explaining the way of living and the morals of life and it is
not a legal code backed by sanctions.

THE SUNNAT:
The term “Sunna” literally means “a path, a procedure, a way of action”, i.e., 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.

In its wider connotation, the term Sunna is applied to the traditions or precedents not merely
emanating from the Prophet, but also from his Companions, Successors. As to the traditions
emanating from the Prophet, all schools of law agree that an authentic tradition is as much
binding as the verses in the Koran, but as to the traditions of others, there is no such
unanimity. Remoter is a tradition from the Prophet, the lesser is its authenticity.

Thus, there is a great divergence of opinion as to which of the traditions are authentic and
which are not. Shafi is categorical in saying that an authentic Sunna is infallible, universal and
eternal.

The Sunnis and the Shias differ fundamentally on the acceptance of the Sunna. The Shias
would not accept a Sunna unless it originated from the household of the Prophet, while the
Hanajis go to the extent of accepting even isolated traditions.

There are numerous collections of Sunna. Some of them are undoubtedly spurious. No one is
certain as to their exact number. The Sunna is not confined to legal norms. They also deal
with theology, trade, ethics, government, etc.

As it often happens with such texts, may be? Sunna are contradictory. Shafi held the view that
a conflict between two or more Sunna should be resolved by a process of harmonious
 construction. In case such a harmonization is not possible, then the one, which is keeping with
the Koran, should be accepted as authentic.

Sunna as continuation of pre-Islamic Sunna:

The fact of the matter is that the concept of the Sunna was adopted by the Muslim jurists from
the pre-Islamic Arabia. It is an Arab legacy to Islam. In pre-Islamic Arabia, it denoted
normative customs or precedents.

The entire conservatism of the Arabs found expression in the Sunna. In the words of Schacht,
it was “this ancient Arab concept of sunna which was to become one of the central concepts
of Islamic law”.

In Islamic law, the term Sunna originally had a political and administrative connotation. It
referred to the policy and administration of the Caliphs. The question whether the
administrative acts of Abu Bakr and Umar should be regarded as binding precedent, cropped
up at a time when a successor to Umar had to be appointed.

THE IJMA : The Ijma can be considered as an agreement among the jurists of Muslim Law
particularly in the question of law. It dealt with the future of Islamic jurisprudence. This was
formulated based on the Hadis or traditions given in the Sunnat. The principle is that God will
not allow his people to agree on an error . The validity of the Ijma is based on the sunna of the
prophet. It is believed that if at all the Quran and traditions fail to help, the consensus of the
opinion of the companions of the prophet and his followers is recognized as the best guide of
law. Thus it is considered as a source of Muslim law.
 THE QIYAS: The Ijma and Qiyas deal with the future of Islamic Jurisprudence. This is the
final primary source of Muslim Law. It deals with the applicability of the laws prescribed in
the texts in scenarios. It is not formulation of new laws but rather application of already
existing principles to new circumstances.
Shias (A type of Muslims’ group) do not accept Quiyas as a source of law.
Qiyas is not a proposition of law & is more in the nature of an application of the law.
It is also not universally accepted as a source of Law. Unlike three other sources of law, it
doesn’t have that much significance.