Sources & Schools of Muslim Law

Muslim law is the branch of civil law which regulates the family matters of Muslims.
Muslim Personal Law (Shariat) Application Act 1937
Who is a Muslim?
Muslim is a person whose faith is Islam. Islam means submission to the will of God. In
Islam it is believed that Allah is one and Muhammad is His messenger.
Thus, it can be said that a person who believes in one God and the Prohpethood of
Muhammad is a Muslim.

SOURCES OF
MUSLIM LAW

Primary Secondary

The Holy Quran Custom

Sunnat & Ahadis. Legislation
Ijma Judicial Decisions
Qiyas Istihsan

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1. The Holy Quran

The word Quran derived from Arabic word "Quarra" which means to read. Every word of
Quran is the word of God, communicated to the Prophet Mohammad (PBUH) through angle
Gabriel, at different time, places and situations between the period from 609 to 632 A.D
(23 years).

Content and Structure: The Quran is revealed in Arabic and contains 114 chapters, which
are called Suras. The suras contain 6666 verses, which are called Ayats and total number
of 77,934 words. The Quran was revealed over two periods which are known a Meccan and
Medinan.
The portion of Quran which was disclosed to Prophet Mohammad (PBUH) at Madina is
concern with legal Principles and the portion at Macca deals with the philosophy of life and
Islamic Religion.

The Collection and Compilation

The whole body of the Quran was given to the world in a fragmentary form during the
lifetime of the Prophet (609 to 632 AD) who called on his scribes to record what had been
revealed to him. The Prophet's recitations were initially written down on whatever material
came to hand, including palm leaves, wood pieces, animal skin and parchment etc. but it
was never collected and arranged during the lifetime of Prophet.

The 1st Khalifa Abu Bakar (632-634 AD) and the 3rd Khalifa Usman (644-656 AD)
collected all the written material into a single codex in the year of 650 AD i.e. 18 year after
the death of Prophet.
Expert: 1. Zaid, 2. Abdullah, 3. Said, 4. Abdul Rahman

Quran as a Source of Law

Almost 200 versus deal with legal principle and nearly about 80 deal with marriage, dower,
divorce and inheritance etc.
1. Reform in unlawful practices and customs like Infanticide, gambling, drinking of
intoxicant, usury, polygamy etc.
2. Social reforms, such as marriage, position of women, divorce, chastity of men and
women.

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3. Criminal laws relating to punishment for theft, fornication, murder etc.

4. Direction relating to treatment of enemy, distribution of booty etc.
5. International law of war and peace, direction relating to treatment of non-Muslims and
their protection of rights.

“Aga Mohammad Jaffer vs. Koolsom Beebee” Where a passage of the Quran was
interpreted in a way both in Hedaya (a work on the Sunni Law), and in the Imamia (a work
on the Shia Law) it was not open to a judge to construe it in a different manner.

2. Sunnat and Ahadis (Traditions)

The Word Sunnat is an Arabic word means a path, a procedure and a way of action.
Everything the Prophet did or said as well as his silence was taken to be a rule under
authority except when he used to give the revelations of God.

i) Sunnat-ul-Qaul: refers the words spoken by the Prophet.

ii) Sunnat-ul-Fail: includes the conduct and behaviour of the Prophet.
iii) Sunnat-ul-Taqrir: by his silence, the Prophet gave an implied approval to pre-Islamic
customs, practices and questions.
Sunnat must be differentiated from Hadith. While the latter is a story or occurrence of an
incident, Sunnat refers to the law that was derived of such conduct of the Prophet.

Ahadis (Tradition)
Ahadis are statements of the Prophet which were narrated by his Companions and
subsequently narrated to the next generation until these sayings were compiled in hadith
collections.
Ahadis were collected by famous Muhaddiths such as Imam Bukhari and Imam Muslim in
their Sahih collections.
For example, the Quran commands Muslims to perform pilgrimage and give charity, but it
does not provide the details. These details are found in the hadith where Prophet
Muhammad explained the details and mechanics of prayer as well as other aspects of Islam.

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Narrators of the Ahadis

The traditions noticed by competent and qualified person were treated as authoritative il
they were found to be reliable. The competence was judged by the mental understanding,
power of retention, righteous conduct of a person and on the basis of whether he was a
Muslim or not

i) Companions of the Prophet: The Muslims who lived with the Prophet during his
lifetime and were close to him are called the Companions. Their testimonies are the most
reliable ones.
ii) Successors of the Companions: The Muslims who came in contact with the
Companions of the Prophet are called the Successors. They stand second in reliability.
iii) Successors of successors: The Muslims who were in constant companionship of the
Successors come last in the line.

Classes of Ahadis
i) Ahadis-i-Mutwatir are the universally accepted traditions. There is no doubt as to their
certainty and have been narrated by many people. All sects of Islam follow them.
ii) Ahadis-i-Mashoor are the popular traditions which were narrated by the companions of
the Prophet and have found mass acceptance. It is the source of law for a majority and not
all.
iii) Ahadis-i-Ahad are the isolated traditions that have not been followed regularly or by
many. Generally, the acceptance and practice is a localised one.

3. Ijma
When Quran and tradition could not supply any rule of law for a new problem the law
knowing persons (Mujtahids/Jurists) used to agree unanimously and gave their common
opinion over the point.
Abdul Rahim define Ijma as "Agreement among the followers of the prophet in a particular
age on a particular question of law"
Similarly, Ijma is a concept of law made by consensus of all Islamic Companion of prophet,
jurists or other persons of knowledge and skill.

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Essential Ingredients of Valid Ijma

1. The Consensus (People Express their views. Discussion and Debate, Differences Drop
and agreed)
2. The Jurist (Muslim and must have Islamic knowledge)
3. Jurists of a particular period.
4. Consensus on a religious Matter
Repeal of Ijma: Ijma cannot repeal the Quran and Sunnah
Some jurist having a view that it can neither repeal anything nor can be repeal by anything
but Bazdawi, is of the view that a latter Ijma can repeal a formal Ijma.

Kinds of Ijma
i) Ijma of the Companions: The consensual opinion of the Companions is believed to be
most authoritative and accurate. It cannot be overruled or modified by subsequent Ijmas.
ii) Ijma of the Jurists: The opinion of learned scholars was believed to be the next best
Ijma after the Ijma of the Companions.
iii) Ijma of the People: At times, the mass acceptance of a principle as law was also
accepted.
As can be seen, the authority of lima depends upon the capabilities of the people
participating in its formation.

4. Qiyas
The Arabic word Qiyas means analogy. It is defined as the process of deduction from first
three sources of law, the Quran, the Sunnat and the Ijma 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.
In simple word it 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.

Essential of Valid Qiyas

1. The source from which Qiyas is deducted must be capable of being extended.
2. It must be capable to understand
3. It must not be inconsistent with Quran, established Sunnat and Ijma.
4. Must determine the point of law and not the meaning of the word.

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5. Must not involve a change in the law embodied in the text

1. Custom
Customs are basically practices that people follow continuously for a long period of time.
All the four Sunni Schools include custom as a Source of Law.
Conditions for a Valid Custom
(i) It must be Immemorial;
(ii) It must be Reasonable;
(iii) It must be continuous;
(iv) It must be territorial:
(v) It must be Certain or unambiguous;
(vi) It should not oppose Islamic Sharia and public policy
2. Legislation
Legislations mean statutes enacted by the Parliament or the State legislature for the
regulation of human actions in a particular aspect. There have been several legislations
enacted by the Parliament to lay the foundation of Muslim law in India. The first law that
was passed was the Shariat Act, 1937. In Islam, the entire body of law that governs their
day to day personal laws, marriage, divorce, etc. are collectively called the Sharia.
Thus, based on Sharia and with the object to make it a complete body of Muslim laws, the
Act was titled as the Shariat Act. It contained only six provisions dealing mainly with:
1. Law relating to the succession of a Muslim person dying intestate. i.e, without a will or
a testament.
2. Law relating to vesting of properties and gifts on females of the Sect.
3. Law relating to marriage, divorce, grounds of divorce, Mehr, guardianship and
maintenance
4. Law relating to wakfs i.e. any trust created for the Muslim religion.

In 1939, an attempt was made to allow the woman to divorce their husbands through the
Dissolution of Muslim Marriage Act, 1939. Prior to this Act wife could divorce their
husband on three main grounds, viz.
1. refusal from maintaining the wife, financially and emotionally,
2. ill-treatment in the matrimonial house and
3. desertion by the husband.

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Now section 2 of the Act provides nine grounds to a Muslim woman in which they could
divorce their husband.

Another issue that came after the divorce was the maintenance of the divorced wife. Hence,
the Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted that gave
them the right to maintenance from their husband during iddat and after that from the
relative and from Waqf-Board in case of failure of relatives.

The most recent development in legislations has been “The Muslim Women (Protection of
Rights on Marriage) Act, 2019” that prohibited any form of an oral or written or in
electronic form of pronouncement of divorce to be void and illegal.

3. Judicial Decisions
These includes the decision of Privy Council, the Supreme court and the High courts of
India. The Judiciary only declares or interpret the law and not a source of it but they
undoubtedly supplement or modify the law. For example, in Muslim law, no interest is
allowed on a loan. But in Hammeera Bibi v. Zubaida Bibi the Privy Council allowed
interest on the amount of unpaid dower.

The first landmark judgment that deals with Muslim personal law was the 1985 judgment
in Shah Bano Begum v. Md. Ahmed Khan. In this case, the apex court held that Muslim
women have a right to maintenance under Section 125 of the Cr.P.C even after Iddat period.

The same ratio was upheld by the apex court in Daniel Latifi v. Union of India.
In Shabnam Hashmi v. Union of India the Supreme Court ruled that any person is entitled
to adopt the minor child under the law of Juvenile Justice (care and protection of children)
Act 2000, irrespective of his or her religion and even if his or her personal laws do not
permit it. The bench led by Chief Justice P. Sathasivam also ruled that personal beliefs and
faiths cannot, dictate how the provisions of the enabling legislation are to be applied,
although they must be respected, ".
Prior to this judgment the Muslim had only the power of guardianship, in which he or she
had legal rights only on the minor child until he or she became an adult. During that period,
the natural parents are entitled to intervene.

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4. Justice, equity and good conscience. - Under Muslim Law principles of justice, equity
and good conscience can also be regarded as one of the sources. Abu Hanifa, the founder
of the Hanafi sect of Sunnis, expounded the principle that the 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: Istihsan literally means approbation and may be translated as "liberal

construction" or "juristic preference". This term was used by the great Jurist Abu Hanifa to
express the liberty that he assumed of laying down the law, which in his discretion, the
special circumstances required, rather than law which analogy indicated. But it was
objected to not only as it left a great deal of discretion in the exposition of the law, but what
was far more important in the eyes of the Muslims, it applied to the law a test not referable
to the Quran and religion, but to external circumstances independent of Islam.

Schools of Muslim Law

The Prophet died without leaving any son and without appointing any successor. After his
death the question arose as to who would be the successor of the Prophet. This question
divided the Muslim community into two groups. One group was headed by the Prophet's
daughter Fatima. This group contended that Ali, who was the cousin and son- in-law
(husband of Fatima, daughter of the Prophet) was the rightful successor of the Prophet. The
other group, headed by Ayesha (widow of the Prophet and daughter of Abu Bakr)
advocated the cause of election.

Sunni sect: This sect advocated for method of election for determining the successor of
Prophet.
This view was advocated by Ayesha Begum, the youngest wife of Prophet.
Elections were held and Abu Bakr was elected. He became the first Caliph. He died in 634.
A.D. and then Omar was elected as the second Caliph. Omar was assassinated in 644 A.D.
After him Osman became the third Caliph through election. He was also assassinated in
656 A.D.

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Shia sect: Minority believed that elections are not the suitable method and it emphasized
on the spiritual leadership of Prophet. They argued that quality comes from nobility of
blood and hence principle of succession should be adopted rather than principle of
election.
This view was advocated by Fatima, the daughter of Prophet.
Consequently, Ali was elected as the fourth Caliph. According to the Shias, Ali was the
first caliph and Abu Bakr, Omar and Osman were not rightful successors, they were
merely usurpers. Ali was assassinated in 661. A.D.

After the death of the Prophet, his first four successors (called Khulafai-Rashidin" or "the
Just Khalifa") carried on the Government of the Muslim Empire in much the same manner
as the Prophet had done.

(a) Hanafi School: This school is named after Imam Abu Hanifa (669- 767 A.D.),
was the most liberal of the four schools because this school relied on the principles of Qiyas
or analogical deductions. A number of scholars think that Imam-Abu-Hanifa was the
founder of Qiyas, this is not correct. Imam-Abu-Hanifa used Qiyas because the knowledge
of Hadis had developed insufficiently by that time.
(b) Maliki School: This School was also named after its founder, Malik- Ibn-Anas
(713-795 A.D.). This school does not accept Qiyas as source of law and gives importance
to the Traditions of the Prophet and Ijma as sources of law.
(c) Shafi School: The founder of this School was Mohammad-ash-Shafi (767-820
A.D.). Shafi was one of the greatest jurists of Islam and the creator of the classical theory
of Islamic jurisprudence. Shafi perfected the doctrine of Ijma and founded the Science of
usul.
(d) Hanbali School: This School was founded by Imam Ahmad Ibn Hanbal (780-855
A.D.) Hanbal strictly adhered to the principle of following the Hadis literally.

Shai Schools
a) Ithna Asharia
b) Ismailia
c) Zaidia

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