Muslim Law: Origin and Sources

Islamic Law, also known as Muslim Law or the Law of Allah, constitutes a vital component of Family Law. As a personal law within the broader domain of civil law, it governs matters pertaining to families when the individuals involved adhere to the Muslim faith. Courts apply Islamic Law in cases concerning family affairs involving Muslim parties.

Introduction

• Muslim Law is called Sharia (Shariah or Syariah) in Arabic.
• Fiqh = understanding of details and refers to the inferences drawn by scholars
• Sharia = Refers to the principles that lie behind the fiqh.
• The word ‘Muslim’ is derived from the word ‘Islam’ and signifies a person who adopts the faith of Islam.
• Muslim Law in general draws no distinction between religious life and secular life

Read Also: Hindu Law Notes: Origins, Sources and Schools of Hindu Law

Origin Of Muslim Law

Muslim Law, or Islamic Law, is believed to originate from divine revelation, communicated to Prophet Muhammad and documented in the Quran. Over time, Prophet Muhammad’s disciples and Muslim jurists have further refined these principles. The Quran’s provisions are extensive, addressing nearly every aspect of human life.

Scholars describe “sharia” as an ancient Arabic term meaning “pathway to be followed” or “path to the water hole,” reflecting the critical role of water paths in an arid desert environment.

Sharīah, also spelled Sharia, is the fundamental religious concept of Islam, systematically developed during the 2nd and 3rd centuries of the Muslim era (8th–9th centuries). The core tenet of Islam is total submission to the will of Allah (God), making Islamic law the expression of Allah’s command for Muslim society. It constitutes a comprehensive system of duties incumbent upon Muslims by virtue of their religious beliefs. Known as the Sharīʿah (literally “the path leading to the watering place”), this law represents a divinely ordained path of conduct that guides Muslims toward practicing their faith in this world and achieving divine favor in the hereafter.

Who is Muslim?

A Muslim is a person who follows the religion of Islam. From the point of law, there are two ways in which a person can be regarded a Muslim.

Muslim by Birth – Believes in one God and Prophet-hood of Muhammad

Muslim by Conversion – Converts by profession of Islam. Converts by formal ceremony.

These two points are the minimum and fundamental rules for a person to be called a Muslim.

Sources Of Muslim Law

The Islamic law is referred to as “Sharia”. Islam has given mankind the most comprehensive legal system. Islam has its own personal, civil, criminal, evidence and international law. There are two types of sources under Muslim law, they are:-

1. Ancient sources
2. Customary sources
3. Modern sources.

Ancient Sources (Ouran, Sunnah, Ijma, Qiyas)

I.) The Quran:

The Quran, regarded as the very word of Almighty God, is undeniably the primary source of Sharia. Critics argue that the Quran does not constitute a code of law for two main reasons.

• First, they claim the Quran serves more as a moral guide for one’s way of life.
• Second, out of its 6219 verses, only about 600 specifically address legal matters.

However, it is essential to understand that, unlike Western legal systems, Sharia does not distinguish between religious and civil matters. Sharia codifies God’s Law, encompassing every aspect of legal, social, political, and religious life. The value of information lies in its quality, not quantity. The Quran outlines six specific crimes against religion, known as “hadd punishments,” and addresses various other topics such as homicide, marriage, divorce, and inheritance. An authentic hadith of the Prophet states, “He who knows the law of inheritance is possessed of half the knowledge of the world.” Remarkably, the Quran encapsulates the complete outline of inheritance law within just three verses (11, 12, and 176) of Surah Al-Nisa. The principles of Ijma and Qiyas, which detail succession, derive their authority from these verses.

No description can fully capture the Quran’s immense importance to Muslims. Objectively, it forms the foundation and framework of Islamic law and stands as its primary material source.

ii) The Sunna

The Sunna is the second most important source of Islamic law after the Quran. It comprises the practices and precedents set by Prophet Muhammad.

Authority and Interpretation:

• The authority of the Sunna is derived from the Quran.
• Understanding the circumstances of each revelation is crucial for correct interpretation, necessitating the collection of traditions about the Prophet’s actions.

Clarification of the Quran:

• The Sunna clarifies ambiguities in the Quran, making implicit injunctions explicit.
• It provides details for religious acts such as prayer, fasting, almsgiving, and pilgrimage.
• Establishes additional rules, e.g., a killer cannot inherit from their victim.

Role in Jurisprudence:

• Jurists refer to the Sunna for solutions to problems not addressed by the Quran.
• Prophet Muhammad is acknowledged as having both the Book and Wisdom.

Limitations:

• The Sunna lacks originality, serving as an elaboration of the Quran.
• Quranic words are of divine origin, while Hadith words are reported by people.
• After the Prophet’s death, Hadith compilations emerged only after two and a half centuries, leading to potential fabrications.

Authenticity:

• The Quran is the only book believed to be undistorted and thus the most reliable source.
• Prophet Muhammad emphasized that any tradition contrary to the Quran should be disregarded in favor of the Quran.

III.) Ijma

Third Source of Islamic Law: Comparable to delegated legislation. It is defined as the consensus of the jurists of a certain period over a religious matter.

Prophetic Endorsement: Considered valid as Prophet Muhammad said, “My community will not agree on an error.”

• Historical Example:
  • After Prophet Muhammad’s death, there was no clear guidance on the next political leader.
  • The election of Abu Bakr as the first caliph by the people’s votes exemplified Ijma.
• Modern Context:
  • Multiple schools of law within the Muslim community.
  • The doctrine of consensus promotes harmony among these schools.
• Challenges:
  • The formation of different schools made achieving consensus difficult.
  • Lack of a representative organization for all jurists.
  • Ijma is now often determined retrospectively.
• Authority:
  • Limited for legal innovation compared to the Quran.
  • Ranks lower than the Holy Quran in terms of authority.

IV) Qiyas:

Qiyas is a tool of interpretation used to find legal principles conforming with the Quran and Sunna for new situations.

• Ijtihad: Involves individual reasoning, requiring knowledge of Islamic law and the exercise of judgment.
• Role of Jurists: Jurists apply their reasoning in Qiyas; otherwise, Qiyas would be impossible.
• Example: The prohibition of alcohol:
  • The Quran prohibits wine.
  • Jurists extended this prohibition to other alcoholic drinks through analogical deduction from the Quranic ruling.
• Weaknesses:
  • Subordinate to Quran: Qiyas derives authority from the Quran and must align with the Divine Will.
  • Controversy and Limitations:
    • Ijtihad has been controversial in Islamic history.
    • Initially, only great scholars, like the founders of Islamic law schools, had the privilege of Ijtihad.
    • By the 10th century, it was believed that the main principles of Islamic law were settled, leading to the closure of “the gates of Ijtihad.”
• Current Status:
  • The Quran remains an ever-illuminating source of Islamic law.
  • Qiyas/Ijtihad is now considered a matter of the past.

2.      Customary source

In its early stage, Islamic jurisprudence was heavily inspired from prevailing customary law e.g. the practices of the Caliphs, the decisions of the judges and the traditions of the people. But even then, Quran acted as a mentor guiding the people. For instance, Caliph Abu Bakr made alms payment compulsory in the light of the Quran; the Qazis i.e. judges did equity by seeking guidance from Quranic verses; and it was under Verse 3 of Surah Al-Nisa that the customary right of unlimited polygamy was curtailed only to a maximum of four wives. Thus, the supremacy of Quran as a primary Islamic source got fully established in that epoch.

3.      Modern sources

In addition to the above main Sources of Law, we find that the law is occasionally supplemented by other principles also. The following can be summarized.

(a) Isti Hasan – Juristic preference – Equity

Isti Hasan, or juristic preference, is a principle adopted by Imam Abu Hanifa to provide relief from absolute dependence on analogical reasoning.

• Meaning: It signifies liberal construction or law of equity, allowing for rules necessary in special circumstances.
• Criticism: Some objected to Isti Hasan, arguing it gave too much discretion in interpreting the law.

(b) Isti Salah – Public interest

Imam Malik introduced Isti Salah, or public interest, as a more reliable test for law development than analogy.

• Usage: Isti Salah is employed when a rule indicated by analogy conflicts with general utility.
• Limitation: It cannot disregard rules based on individual opinions but only if they’re harmful to the public.

(c) Ijtehad – Exercising independent reasoning

Ijtehad refers to exercising one’s own reasoning to deduce a rule of Shariat (Islamic law) when Quran and Hadis (traditions) are silent.

• Usage: Ijtehad considers Quran, Hadis, time exigencies, and public interest when deducing legal principles.
• Qualifications: It was practiced by Mujtahids, scholars with extensive knowledge of Quran, Hadis, and law, and known for their piety.
• Closure: After the death of Ibne Hanbal, there were no recognized Mujtahids, leading to the closure of Ijtehad.

(d) Taqlid – Law of Precedents

Taqlid is the doctrine of following precedents after the closure of Ijtehad. It entails following opinions without knowing their authority, as many Muslims were not well-versed in Sharia.

• Limitation: It denies independence of judgment to scholars, leading to a cycle of imitation.

(e) Fatwas – Decisions of Muslim Judges

Fatwas are opinions of Muslim jurists sought by kings and ordinary Muslims for legal guidance. Fatwas were highly regarded, even though they are not a source of law.

• Example: During Aurangzeb’s reign, Shaykh Nizam Burhanpuri and others compiled Fatwa-e-Alamigir in India.

These principles and practices showcase the evolution and application of Islamic jurisprudence over time.

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