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Primary Source of Muslim Law


Authored by Yukti Kohli


Keywords : Personal law, Revelation, Proselytization, Promulgated, Mujtahids, Consensus, Verses.


Abstract

Muslim law is a personal law based on Islam. Islamic law deals with the duty of man towards God and other men. Islam means a total surrender of oneself to god. Islamic law teaches us to walk on the right path. There are primary as well as secondary sources of Muslim law. The primary sources of Muslim law are – Quran, Sunnah, Ijma, and Qiyas. The secondary sources of Muslim law are Judicial Decisions, Customs, Legislation, Equity, Just & Good Conscience (Istihsn, Itislah & Istidal). This article mainly deals with the primary sources of Muslim law.


Introduction

Muslim law is a personal law that is applied to a person who is a Muslim either by birth or by proselytization. Muslim Personal law is based on Islam. Islam has its origin from Arabia. Prophet Mohammed, an Arab himself, promulgated Islam and laid down the foundation of Islamic law. Islamic law is a branch of Muslim theology that provides for practical expression to the faith of an individual towards God. Islamic law tells about a man’s duty and obligations rather than the rights available to him. The Islamic legal system was developed by an Arab jurist and the Islamic jurisprudence was found in pre-Islamic Arabian customs and usages were found in the Christian era of the seventh century.

The word Islam means a total surrender of oneself to God. Islamic law lays down how a Muslim should conduct himself towards God and other men. Muslim law is the first and original legislative code of Islam. Muslim law in India is that portion of Islamic civil law that is applied to the Muslims as their laws. The object of Islam is to create a sense of submission and thereby to walk on the right path.

Sources of Muslim law

Muslim law can be derived from primary as well as secondary sources.

Primary sources

1. Quran

The word Quran is derived from the Arabic word “Quarra” which means to read. Quran is the name of the holy book of Muslims, that contains the direct revelation from God which have been provided through the Prophet. Quran is considered as the original or primary source of Muslim law, which consists of the very words of God or the hints acquired by the prophet through the Ilham of God. It is believed that the Quran consists of the communication between the angel Gabriel and the prophet under God's directions. The content of the Quran was presented during the lifetime of the prophet in the memories of companions and it was not written during the lifetime of the prophet.

Quran is the source on which all the principles, ordinance, teachings, and practices of Islam are based. Quran consists of verses. Although there is no systematic arrangement of verses in the Quran, it is scattered throughout the text of the Quran. Quran provides for moral reflection of an individual and is considered as a divine origin, having no earthly source.

Quran is considered as a final and supreme authority. Quran can never be altered or changed. Therefore the court of law never changes the actual meaning of the verses, which are available in the Quran.

2. Sunna

The term Sunna means the trodden path. Sunna consists of whatever the prophet said or did without reference to God. It is believed that traditions are injunctions of Allah, which is given by the prophet, and this formed part of Sunna. Where the Quran cannot supply authority for a given rule of law Sunna is taken as an authority.

Under Muslim law there are two types of revelations; that is Manifest (Zahir) and Internal (Batin).

Manifest is considered as a very word of Allah which came through angel Gabriel to the prophet and was included in the Quran. Whereas internal revelations are the words of the prophet and did not come through Gabriel. It is considered as the language of prophet inserted from time to time on questions so raised.

Kinds of tradition

· Sunna

· Alhadis

Sunna can be divided into three categories, namely;

· Sunnat – ul - Fail (word spoken)

· Sunnat - ul - Qual (conduct)

· Sunnat - ul – Tahrir (silence)

Alhadis is the narration of what the prophet said or did. Alhadis can be for the divided into;

· Alhadis – i - Mutwair (Traditions that hold an absolute authenticity)

· Alhadis – i - Mashoor (Tradition which is known to a majority of people)

· Alhadis - i - Wahid (Tradition which depends on isolated individual)

3. Ijma

Ijma is considered as a third source of law. The questions which could not be solved either using the principles of the Quran or by Sunna were decided by the Muslim jurist. Ijma as defined by Sir Abdul Rahim, Ijma is an agreement of jurists among the followers of Prophet Mohammad in a particular question of law. Ijma is the consensus of jurist opinion. Under Muslim law, the people who knew law are called as Mujtahids. The unanimous decisions provided by the jurist are termed as Ijma. Ijma is formed by Mujtahids and is equally binding on people.

Ijma authenticated the right interpretation of the Quran and Sunna principles that “God will not allow his people to agree on an error”. Ijma is the only authority for legislation in the present Muslim system.

Kinds of Ijma

· Ijma of companions

· Ijma of jurist

· Ijma of people or masses

4. Qiyas

Qiyas is an Arabic word that means measurement, accord, and equality. In other words, we can say that it means establishing an analogy. Qiyas is a process of deduction that helps in discovering law.

Conditions of a valid Qiyas

i. The principle of Qiyas can be applied only to those texts which are capable of being extended.

ii. The analogy deduced must be consistent with the Quran and Sunna.

iii. Qiyas must be applied to discover a point of law and not to derive the meaning of a word.

iv. Qiyas must not bring a change in the law already embodied.

Qiyas is given less significant as compared to the other sources of Muslim law. If there is any conflict between two deductions it is upon the jurist to accept anyone analogy from the text.

Conclusion

Under Muslim law, the maximum significance, as a source of Muslim law is given to the Quran and then to Sunna. If the Quran and Sunnah cannot answer the problem of law then the help of Ijma is taken. Qiyas is given the least significance when it comes to sources of personal law. Due to the sources of Islamic law, a systematic theory of personal law came into existence that governs the Muslim community.


References

i. https://legalserviceindia.com/legal/article-1876-sources-of-muslim-law.html

ii. https://blog.ipleaders.in/preliminary-sources-muslim-law/

iii. https://lawresearchguides.cwru.edu/c.php?g=819978&p=5851791