The Various Sources Of Mohammedan Law
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Primary or Principal Sources
The Quran : (which is the 'divine communication and revelation to the prophet of Islam) is the first source of Muslim Law. It is the Paramount and universal authority of Mohammedan Law. It is composed of such express revelations as were made in the very words of God to Mohammed when pe was gifted with of the office of Prophet and Messenger of God. As precept and usages of Mohammed were inspired by God, they have the force of law. 18 years after the death of Prophet Mohammed, Quran took its present textual form in which it is divided in 30 chapters and is composed of Ayats. The Quran is not in the form of any definite code. A very small portion of its has a reference to law laying down the broad general principles, concerning with marriage, dower, divorce inheritance etc. but in all matters with which it deals it is the primary and final authority.
Traditions (Ahadis & Sunnat) : After the death of prophet Mohammed, the Mohammedan society was faced with many problems to which the Quran was silent and it was also not possible to refer to Prophet. But during his life time, the prophet pronounced his verdicts, he did certain things and also allowed indirectly the doing of certain other things as permitted by Islam. Consequently ‘what was said or done or upheld in silence by the Prophet1 becomes a primary source of Mohammedan law coming next in importance to Quran. Quran is the express revelation while these traditions are implied revelations in the precepts, actions and saying of the Prophet. They were not written down during the life time of Prophet but were preserved by traditions and handed down by authorized agents. Sunnat generally means what the Prophet did while Ahadis means what he said.
Ijma (Consensus) :Ijma means the consensus (unanimity) of opinion of the companions and followers of the Prophet. Sir Abdul Rahim has defined it as 'the agreement of the jurists among the followers of Mohammed in a Particular age on a particular question'. After the death of Prophet and with expansion of the Islamic influence, a large number of fresh facts, new problems arose which could not be decided by reference only to Quran and Ahadis. The jurists then took the recourse through the Principles of Ijma, that is the consensus of opinion among the companions of Prophet. The reason behind it was that the persons associated with the prophet as his companion must have known by instinct, the Policy of the Islamic law and whether a particular rule or decision was in harmony with Islamic principles. Ijma is the best guide of law and is universally accepted as an authority next after Quran and Ahadis. So it is the third (in time and importance) source of law.
Qiyas (Analogical deductions, simiiar inferences) :In Muslim jurisprudence Qiyas means an extension of law (from the original text),by means of common sense. According to Jung it is the process of deduction, applying the law of the text to the cases which (though not.covered by the language of the text), are covered by.the reasons of the text.
Secondary Sources
Custom : A custom is a tradition, (Passing from one generation to another) thatoriginally governed human conduct and has obtained the force of law in a particular locality or com¬munity. It is a natural source of law. The Muslim jurists do not expressly describe it as a source of law but those customs and usages which were not touched upon or abrogated by the Prophet, remained good and valid like Polygamy, Oral Wills, Dower, Divorce etc.
Judiciai Precedents ; Interpretation of the Mohammedan Law by the Privy Council and the Judges of the Supreme Court and High Courts, continue in modem times to supplement and modify the Islamic Law. As such they are continuing source of Mohammedan law.
Legislation : Acts of Indian Legislature such as Mussalman Waqf validating Act 1913,Shariat Act 1937, the Dissolution of Muslim Marriage Act 1939, the Indian Contract Act 1872 and Guardians and Wards Act 1890,etc. have considerably affected, altered, enlarged or modified the old Muslim law.
Justice, Equity and Good Conscience :Where there is no specific rule to guide the court, or there is conflict of opinion the Court should follow that opinion which is more in accordance with justice, equity and good conscience (Aziz Bano V. Mohammed 1925). Where the law of Qiyas etc, is not suitable to the present day needs of the society or where it was such that its rigid application would result-in hardship to the public, rules of equity could be applied. Istihasan Where the law analogically deduced (obtained from similarity) is inadaptable to the present needs of the society,- or where it was such that its rigid application would result in hardship to the public, rules of equity could be applied. Abu Hanifa, (the great jurist) called this “istihasan'' (literally translated as “Juristic Preference”).
