Customary sources:

The Muslim people are governed by some informal laws based on customary practices, which differ from cultural, social and political scenario. A custom is a tradition passing on from generation to another, which originally governed human conduct and obtained the force of law in a particular locality. Customs are basically practices that people follow continuously for a long period of time. In fact, people follow them for so long that they obtain the status of law in some cases. It is a natural source of law.

Muslim law contains various customs regulating practices of people. There were many customs during the pre-Islamic period. The prophet had approved a number of them. Some of them continued with his tacit consent and these became part of Ijma. These gained legal status in course of time; e.g. the practices of Caliphs, the decisions of the judges and the traditions of the people.

The Muslim Jurists do not expressly describe it as a source of law but those customs and usages which were not modified or abrogated by prophet, remained good and valid. The primeval customs were regulated by the prophet Muhammad. The custom is not a legal source of Muslim law.

But even then Quran acted as a mentor guiding the people. For instance, Caliph Abu Bakr made alms payment compulsory in the light of Quran. The Quazis i.e. judges did equity by seeking guidance from Quranic verses; e.g. under verses 3 of Surah Al-Nisa, that the customary right of unlimited polygamy was curtailed to a maximum of four wives. Thus supremacy of Quran as a primary Islamic Cource got fully established in that epoch.

However, Shariat Act, 1937 was made to apply only the Sharia and not the customs. During the British regime, Courts in India recognised the legal force of customs on some occasions in spite of the fact that they were opposed to the clear texts of a primary source of Muslim law. This caused great dissatisfaction among the orthodox Muslims and led to the passage of Shariat Act, 1937; which abolishes most of the customs from the Muslim personal law. Section 2 of Shariat Act, 1937 lays down that if the parties are Muslims, only Muslim personal law will be applied to them in the following matters – [i] inheritance, [ii] special property of females, [iii] marriage, [iv] dower, [v] divorce [vi] maintenance, [vii] guardianship, [viii] gift, [ix] Waqf, [x] trust.

In respect of these matters customs or usages have no place. But customs are still applicable in the matters of religious and charitable endowments.

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Qiyas:

In cases when something needs a legal ruling, but has not been clearly addressed in the other sources, judges may use analogy, reasoning and legal precedent to decide new case law. This is often the case when a general principle can be applied to new situations.

Qiyas means ‘measuring’, ‘accord’ or ‘equality’. In Muslim jurisprudence it means an extension of law from the original text by means of common sense. According to Jung, ‘it is a process of deduction applying the law of the text to the cases which, though not covered by the language of the text, are nevertheless covered by the reason of the text.’

As Islam spread in various parts of the world, they rendezvous with several other communities, and with the passage of time new difficulties arose. The Holy Quran was not capable of dealing with new emerging difficulties arising from contact with the outside world. To resolve this problem, the Muslim jurists commenced referring to Quran and Sunna to compare the situations and deduce an answer to the problem on the basis of some analogy. When the answer is found and all the jurists together agree to it, it was called the Qiyas. Thus Qiya basically means an analogical deduction from the existing sources that do not explain something. It involves both the knowledge of the rules of Islamic law and the exercise of one’s judgement, even Qiyas would be impossible if jurists were not allowed to apply their own reasoning.

An example of this procedure can be found in the prohibition of alcohol. The drinking of wine is one of the Quranic crimes against religion. With the appearances of other alcoholic drinks unknown to early Islam, the jurists extended the prohibition of wine to include such drinks by analogical deduction from the Quranic ruling.

Qiya helps in deducting interpretations that seem to be the most obvious. It can only explain or interpret the law, but it cannot change the law for its essence. This source of Muslim law ranks below other ancient sources because of its deductive nature. Qiya is essentially a tool of interpretation and is not a mean to alter the existing law but can only be used to find a legal principle in conformity with Quran and Sunna for a new factual situation. The Qiya has its own limitations as it derives its authority from the Quran. Human reason was not to be exercised independently but rather in accordance with the Divine Will as manifested in Quran.

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Ijma:

When all judges in the Supreme Court unanimously agree to a point and pronounce judgement on that point, it becomes a precedent and a binding law. Similarly Ijma is a concept of law made by consensus of all Islamic Jurists or other persons of knowledge and skill.

Ijma means the consensus of the companions and followers of the prophet Muhammad. Abdul Rahim defines it as ‘the agreement of the jurists among the followers of the prophet in a particular age on particular question.’ Ijma is the doctrine of consensus and a source of harmony in Muslim community.

It is based on the belief that when all the most revered persons of the society having maximum knowledge of the Quran have together taken a decision, it should be for the benefit of the Muslim community.

After demise of the prophet, Islamic expansion took place and a large number of new situations and problems cropped up, which would not be decided with the reference of only Quran and Hadis. The jurists then took the recourse to the principle of Ijma, which is based on tradition. Ijma is the majority view of the Scholars. It became a communal legislation by the great authorities. This was based on equity, public interest and sound precedent.

A good illustration for the principle of Ijma is occurred right after the death of the prophet; no guidance was available on who would now be successor of the prophet as a leader of the community i.e. Caliph. The election of Abu Bakr to the post of the Caliph by the votes of the people was the first manifestation of Ijma.

The authority of Ijma for legal innovation is very limited and that is why it ranks lower than the Holy Quran.

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Hadith

Hadis or Hadith:

Just as Quran is the express revelation through Muhammad, the Hadis or Hadith are implied revelations in the precepts and sayings and actions of the prophet, not written down in his lifetime, but preserved by traditions and handed down by authoriesd agents. Hadis is totally based on traditions of Islamic community. These are recorded and are authoritative sources. Bukhari has recorded about 7000 such hadis. The words of the Quran are the words of the Allah, while the words of Hadith are the words of the prophet reported by people. Hadis are recorded after one and half century of the demise of the phrophet.

Hadis are the books containing the Sunna. It means that Sunna is the Action and words spoken by the prophet and Hadis is the scripture where these are recorded. It is believed that the prophet forbade his followers from writing his preaching and his actions. He believed that writing what was being done might cause confusion between his actions and the words of the Quran. Therefore, no Hadis has been discovered from the time of the prophet. Nevertheless, it is believed that after his death, the Sunna were written down in several books and all complied together are called the Hadis.

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Sunna:

Just as Quran is the express revelation through the prophet, the Sunna are the implied revelation in the precepts and sayings and actions of the prophet, not written down in his lifetime, but preserved by traditions and handed down by authorised agents. The word Sunna basically means ‘path’.

After demise of Prophet Muhammad, the Muslims were divided into two sects on the issue of a worthy and competent successor; first being Shia Muslims and Second being Sunni Muslims. One believed that the one elected by the people as the Caliph would be the successor of the prophet while other sect believed that only the descendents or relatives of the prophet could be worthy successors.

Sunna is followed by the Shia Muslims in their day to day lives to comprehend answers to questions that they face. Sunna is believed to be the customs and traditions followed by the actions and assertions. According to the Quran, the prophet preached that his traditions and his actions should be followed even after his death and therefore the actions of his daughter and that of the Shia Imams after the prophet are also counted in Sunna.

Sunna is second in priority after the Quran. Therefore, whenever there is a situation where the Holy Quran is silent and the people are unable to make a decision, Sunna i.e. the actions of the prophet are followed.  It means Sunna teaches people what prophet would have done himself if he was in a situation like this. Since people believe that prophets actions are motivated by Allah’s grace and his actions are those of Allah himself, adherence to Sunna became popular. The authority of the Sunna is derived from the text of the Quran. Because the circumstances of each revelation were thought necessary to correct interpretation, it was imperative to gather as many traditions as possible about the actions of the prophet to fully understand the Quran.

The Sunna clarifies the ambiguities of the Quran. The Quranic injunction is sometimes implicit; the Sunna makes it explicit by providing essential ingredients and details. The details of the acts of prayer, fasting, alm-giving and pilgrimage were all illustrated by the Sunna of the prophet. Again, it was established by the Sunna that a killer cannot inherit from the property of his victim. Thus, for answers to many problems to which the Quran offers no solution jurists turn to second source of Islamic law. Thus Sunna is the second most important ancient source of the Muslim law from which decisions are made in the personal matters of Muslims.

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Classification of Sunna:

i) Sunnat-ul-Qual: - All words, counsel and precepts of the prophet

ii) Sunnat-ul-Fail: - All actions, words and daily practice of the prophet

iii) Sunnat-ul-Taqrir: - Silence of the prophet implying a tacit approval of what was done in his presence.

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Quran:

The Quran is composed of such express revelations as were made in the very words of Allah to prophet Muhammad through Angle Jibrail, when he was bestowed with the office of the prophet and messenger of Allah. Since Quran represents the voice of Allah, its authority is paramount.

The standard authoritative version of the Quran was prepared after the death of the prophet, during the time of third Caliph and all the other versions were destroyed. The script who had been employed by prophet himself during the prophet’s lifetime assisted the third Caliph in preparing the standard text. The Quran is like a constitution for the Muslims and it contains all principles to be used in personal laws including marriage, divorce, succession, etc. In a strict sense, the Quran cannot be called a legalcode and Muslims jurists agree that it contains verses explaining the way of living and the morals of life and it is not a legal code backed by sanctions.


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It is divided into 114 chapters and composed about 6236 verses. It is in the form of a series of communications addressed by Allah to the prophet. The communications were declared to the people on a large number of different occasions during the life of prophet. There are near about 600 verses in Quran which are law making, which embody rules of law.

All tenets, teachings, principles and practices of Islam originate from the Quran. Due to its stature as Islam’s holy book, it is the final authority on Muslim law.

For Allah’s commandments, the technical name is “Sharia”. There are five categories of rules described in Sharia as follows:

a) Fard means “shall be done” e.g. daily prayers

b) Haram means “prohibited” e.g. wine

c)  Makruh means “advised not to do” e.g. not to eat meat of certain animals

d) Mandub means “advised to do” e.g. additional prayers

e) Jaiz means  left to the individual to decide to do or not to do.

When the Quran itself does not speak directly or in detail about a certain subject Muslims only then turn to alternative sources ofIslamic law.

It is criticised that Quran is not a code of law because of two main reasons:

a) It is argued that Quran is rather a moral code determining ones way of life.

b) It contains not more than 600 verses dealing with specifically legal matters out of 6236 verses.

But it is the Quran  that identifies six specific crimes against religion i.e. had punishments. There is an authentic Hadis of the prophet that “he who knows the law of inheritance is possessed of half the knowledge of the world.”

Some of the verses seek to repeal objectionable customs such as infanticide, gambling, usury, unlimited polygamy, etc., some seek to make reforms in the cases of women, succession and inheritance while some lay down punishment. It also contains general injunctions. But still the Quran is the foundation and framework of Islamic law.

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Short Q & A: Muslim Law 2

Q. What are the ways in which a person can be regarded as Muslim

Ans. There are two main ways in which a person can be regarded as a Muslim:

1) Muslim by birth and 2) Muslim by conversion

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Q. How a person can be Muslim by birth?

Ans. If a person a) Believes in One God, and b) follows Prophet-hood of Muhammad then he is the Muslim by birth.

Q. How a person of other religion can be converted in Muslim?

Ans. A person a) Converts by profession of Islam or b) Converts by formal ceremony into a Muslim.

Q. What is meaning of “sources”?

Ans. Sources means the origin, a place from which a person or thing has emerged.

Q. Why it is not possible to frame laws contradictory to the religious beliefs?

Ans. Since the personal laws are based on the customs and practices of the religion, it is not possible to do away with them and frame the laws completely adverse to the religious beliefs.

Q. What are the types of sources of personal law?

Ans. 1) Ancient Sources, 2) Customary Sources, 3) Modern Sources.

Q. What are the types of religious sources of Muslim law?

Ans. There are five types of religious sources of Muslim Law: 1) Quran, 2) Sunnah, 3) Qiyas, 4) Ijma, 5) Hadith.

Q. What is Quran?

Ans. The Quran is composed of such express revelations as were made in the very words of Allah to prophet Muhammad through Angle Jibrail, when he was bestowed with the office of the prophet and messenger of Allah. Since Quran represents the voice of Allah, its authority is paramount.

Q. How many chapters and verses are there in Quran?

Ans. Quran has 114 chapters and composed of about 6236 verses.

Q. How many law making verses are there in Quran?

Ans. There are near about 600 verses in Quran which are law making, which embody rules of law.

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