Introduction

Islam carries significant characteristics of an elaborate legal system seeking to regulate broad
areas of human conduct in accordance with its ideal paradigm of what constitutes right and
wrong. Islamic precepts, which Muslims believe to have been inspired by God, should be
followed by believers by means of thought and deed. Classical Islamic jurisprudence rests on a
monotheistic outlook that regards God as the ultimate source of law, for He alone is taken to be
the ultimate sovereign whose omnipotence over human affairs stems from His status as the
creator of the universe. Humankind accordingly needs no further justification to be subordinate
to His will. Unsurprisingly, in relation to Lord (rabb), Islam characterises humans as servants
(‘abd).

The word ‘Islam’, likewise, derives from the Arabic term salám, which has a two-fold meaning:
peace and submission (to God). A Muslim, then, is a person who submits to God’s will to the
exclusion of any other revered entity. The challenging questions of how Islamic law regulates
international affairs in general, as well as just recourse to and just conduct in warfare, along
with issues germane to peaceful settlement of disputes and criminal justice, demand a general
examination of the origins, development and hierarchy of Sharí‘ah. This chapter will explore the
primary sources of Sharí‘ah, namely the Qur’án and the Sunnah (the Prophetic tradition), and
the main secondary sources, namely ijtihád (independent critical reasoning) and ijmá‘
(consensus of commentators on a controversial point of law). Rejecting literal and narrow
hermeneutics, this chapter will highlight the need for a contextual reading of Islamic sources,
whose varied interpretation informs most contemporary debates. By providing an overview of
the key sources of Islam, this chapter aims at setting the ground for the volume.

Sources

Sources of Muslim law is classify into two categories that is primary sources and secondary
sources.

Primary Sources

Primary sources are those on which Muslim law relied on. These sources are the foundation of
Muslim law. Primary sources of Muslim law are:

-Quran

-Sunnat
-Ijma

-Qiyas

1. AL-QUR’AN

The Holy Quran is the first and most important source of Islamic law. The word Qur’an literally
means “the reading” or “the recitation”, and refers to the divinely revealed scripture given to
Prophet Muhammad. Since Prophet Muhammad is considered the last prophet of God, the
Qur’an is considered the ultimate revelation from God to humanity.

The Qur’an is the book revealed the messenger of Allah, Muhammad (PBUH) as written in the
Mashaf and transmitted to us from him through authentic continuous narration (tawatur)
without doubt. Other jurist defines that the Qur’an is the words of Allah (Exalted) that were
revealed to the Prophet (PBUH) in Arabic through the Angel Jibril.

As a complete code of life in terms of its stated morality and laws, the holy Quran guides
humans in spiritual and worldly matters, as well as individual and collective aspects of life. The
holy Quran, the last book of Allah Almighty which He revealed on Prophet Muhammad (PBUH),
is the foundation of religion and the fountainhead of Islamic law. This is a complete book and a
code for man’s guidance. It is addressed to the whole humanity without the discrimination of
race, colour, religion or time. It is the first source of Islamic law and, without any doubt, is the
recipe for success in this world and the hereafter. We can say in other words that, Muslims
believe that the Quran is the direct word of Allah (SWT), as revealed by Muhammad (SAW). All
sources of Islamic law must be in necessary agreement with the Quran. The Quran was written
and preserved during the life of Muhammad (SAW), and was compiled soon after the death of
Muhammad (SAW).

As the Qur’an was revealed over a period of twenty three years in relation to particular events
and it is explained in the holy Qur’an as follows.

More than 200 verses of the Holy Quran make up the body of Islamic law that governs legal
relations. It is notable here that all the rules in these 200 verses leave their mark in the five
basic principles that lay the very foundation of the Islamic legal system. The brief break of

these verses is as follows:

70 verses on family and Inheritance law

70 verses on obligations and contracts

30 verses on criminal law

20 verses on procedure

10 verses on other matters

2. Sunnat

The word sunna means the trodden path & as this meaning shows it denotes some kind of
practices and precedent. It is belief of Muslim that revelations were two kinds- manifest (zahir)
and internal (batin). Manifest revelation is communication which is made by angel Gabriel
under the direction of god to Mohammad in the very words of god. Quran is composed of
manifest revelations.

Internal revelation is opinions of the prophet which is delivered from time to time on questions
that happened to be raised before him. Sunna means the model behavior of the prophet. The
narrations of what the prophet said, did or tacitly allowed is called hadis or traditions. The
traditions, however, were not reduced to writing during lifetime of Mohammad. They have
been preserved as traditions handed down from generation to generation by authorized
persons. The importance of hadith as an important source of Muslim law has been laid down in
the Quran itself.

Kinds Of Traditions: The Traditions Are Of Two Kinds:

1. Sunnat

2. Ahadis

These two have been classified into the following three classes on the basis of mode or manner
in which it has actually originated:

◑Sunnat-ul-fail i.e., Traditions about which prophet did himself.

◑Sunnat-ul-qaul i.e., Traditions about which he enjoined by words.

◑Sunnat –ul-tuqrir i.e., The things done in his presence without his disapproval.

The three class of Ahadisare:

◑Alhadis -i-mutwair i.e., Traditions that are of public and universal propriety and are held as
absolutely authentic. In such hadis the chain is complete.

◑Ahadis -i-mashhoor i.e., Traditions which known to a majority of people, do not possess the
character of universal propriety.

◑Ahadis-i-wahid i.e., Traditions which depend on isolated individuals.

3. Ijma

It was equally binding on the people to act on a principle (not contrary to the Quran or hadis )
which had been established by agreement among highly qualified legal scholars of any
generations.

Ijma has been defined by Sir Abdul Rahim as agreement of the jurists among the followers of
Prophet Mohammad in a particular question of law. The validity of ijma, as containing a binding
precedent, is based upon a hadis of the prophet which says that god will not allow His people to
agree on an error. Ijma thus become a source of law. According to the classical theory, failing
Quran and traditions, and consensus of opinion amongst the companions of the prophet is
recognized as the best guide of law. Thus it is the third source of law, both in point of time and
importance.

The authority of ijma as a source of Muslim law is also founded on Quranand Hadith. The law is
something living & changing. The aim of law is to fulfill the needs of the society. The principle of
ijma is based upon the text i.e. god will not allow His people to agree on an error and whatever
Muslims hold to be good is good before god. Muslims religion does not admit the possibility of
further revelation after the death of the prophet, the principle of ijma is the only authority for
legislation in the present Muslims system.
4) Qiyas

This is a last primary source of Muslim law. Qiyas means reasoning by analogy from above 3
sources i.e., Quran, Sunna and Ijma. In Qiyas rules are deduced by the exercise of reason.

Qiyas may be defined as a process of deduction by which the law of the text is applied to cases,
which though not covered by the languages are governed by reason of text. Thus, it should be
noted that Qiyas does not purport to create a new law, but merely to apply old established
principles to new circumstances.

Conditions of Validity of Qiyas:

◑The original source from which Qiyas is deduced must be capable of being extended, that is it
should not be of any special nature.

◑The original order of the Quran or hadith to which the process of Qiyas is applied should not
have been abrogated or repealed.

◑The result of Qiyas should not be inconsistent with any other verse of Quran or any
established Sunna.

◑Qiyas should be applied to ascertain a point of law and not to determine the meanings of
words used.

◑The deduction must not be such as to involve a change in the law embodied in the text.

Secondary Sources

These sources are not basic sources of Muslim law but the supplementary sources of Muslim
law. The secondary sources of Muslim law are:

Urf or Custom

Judicial decision
Legislation

Equity, Justice, & Good conscience

Urf or Custom

Before the emergence of Islam in Arabia , customs were the basis of entire social life, religion,
morality, trade and commerce. Custom has not been recognized as a source of law in a Muslim
law. However, it cannot be denied that custom has always been given a place under Muslim
law, if it is in conformity with Muslim law.

Pre- Condition Of Valid Custom

Custom must be territorial.

It must be existing from memorable time i.e. ancient.

It must be continuous and certain and invariable.

Custom should not oppose the public policies.

Custom must not in contravention of Quran and Ijma.

Istihsan

The doctrine of equity, justice & good conscience is regarded as one of the source of Muslim
law. Abu Hanifa, the founder of hanafi sect of Sunni, expounded the principle that rule of law
based on analogy could be set aside at the option of the judge on a liberal construction or
juristic preference to meet the requirements of a particular case. These principles of Muslim
law are known as Istihsan or juristic equity. Istihsan literally means approbation and may be
translated as liberal construction or juristic preference.

This term was used by great jurist Abu Hanifa to express the libert that he assumed of laying
down the law, which in his discretion, the special circumstances required, rather than law which
analogy indicated. Several areas of Muslim were modified so as to meet the changing
conditions in India.
Ijtihād

Earlier sections were addressing sources not reliant on positive interaction with the sources on
the side of the jurist. In engaging with the sources and developing unique legal positions, the
jurist would be exercising Ijtihād. Ijtihad is literally translated as exerting oneself, but in Islamic
law, it is generally understood as ‘the exertion of mental energy in the search of a legal opinion
to the extent that the faculties of the jurist become incapable of further effort

Istiṣḥāb

Istisḥab is ‘the principle by which a given judicial situation that had existed previously was held
to continue to exist as long as it could not be proved that it had ceased to exist or had been
modified.’ It is not necessarily perceived as a tool of legal reasoning, but understanding the
concept is important considering its popular employment by jurists in specific cases. This
principle allowed jurists to assume that a missing person is still alive despite disappearance,
thus preventing the wife from remarrying and denying beneficiaries inheritance. As a legal tool,
it was particularly popular among the Mālikīs and the Shāfiʿīs

Conclusion

These four sources namely Quran, Sunna, Ijma and Qiyas are the primary sources of law.
Muslim law mainly based on verses of Quran and practices of hadith. There is secondary source
of Muslim law which subsequent of it. 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 govers the Muslim community.

References

1. Muslim Law By Syed Khalid Rashid, 3rd Edition

2. Muslim Law By M.A. Qureshi, Edition 2002

3. Principle Of Mohammadan Law By DF Mulla