Muslim Law by Gaurangi Kushwah @lexcliq

 

Who is a Muslim?
The term Muslim means submission. A Muslim is a person who follows Islam. Muslim law applies to a born Muslim or a person who is a convert Muslim.

Muslim law even applies to certain other categories of people also such as the Khojas, Halai Memons, Sunni Bohras of Gujarat Daoodi, and Sulaimani Bohras and to Molesalam Broach Girasis.

Origin of Muslim Law
Muslim law or Islamic law is known to be originated from the divine and not like the man-made laws that are passed by the lawmakers and are governed by the principles of modern systems of law. Muslims believe that there is only one god, Allah.

The traditional Islamic law or Islam’s legal system is well known as Sharia, it is an Arabic word which in the literal sense is referred to as the way. Sharia is originated from Allah and that is the reason that Muslims consider it as holy. Muslims considered it a word of god’ which regulate and evaluate human conduct. The Sharia is also derived from Prophet Mohammed’s principles and by some of the Muslim legal scholars who interpreted his teachings. It is said that Islamic jurisprudence is also something that goes back to the lifetime of Mohammed. For Muslims, the Quran’ is the only disclosed book of Allah.

In the case of Narantakath v. Prakkal (1922) ILR 45 Mad 986, it was stated that there are two basic beliefs of Muslims, first, the existence and oneness of God, and second was the belief in the truth of Prophet Mohammed’s mission.

Sources
Sources of Muslim law is classify into two categories that is primary sources and secondary sources.

Primary Sources
Primary sources are those on which Muslim law relied on. These sources are the foundation of Muslim law. Primary sources of Muslim law are:

Quran
Sunnat
Ijma
Qiyas

1. Quran
Muslim law is founded upon Al-Quran which is believed by the muslamans to have existed from eternity, subsisting in very essence of god. The word Quran has been derived from the Arabic word Quarra which means to read. The Quran is, Al-furqan i.e., one showing truth from falsehood and right from wrong. The word Quran which is the divine communication’ and revelation to the prophet of Islam is the first source of Muslim law.

Quran is a primary source of Muslim law, in point of time as well as in importance. The Islamic religion and Islamic society owes its birth to the word of Quran. It is a paramount source of Muslim law in point of importance because it contains the very word of god and it is foundation upon which the very structure of Islam rests Quran regulates individual; social, secular, and spiritual life of Muslims.

It contains the very words of god as communicated to prophet mohammad through angel Gabriel. It was given to the world in fragmentary forms, extending over a period of 23 years. It originally had for its objects repealing objectionable customs, such as, usury, unlimited polygamy and gambling, etc., and effecting social reforms, such as raising the legal status of women and equitable division of the matters of inheritance and succession.

2. Sunnat
The word sunna means the trodden path & as this meaning shows it denotes some kind of practices and precedent. It is belief of Muslim that revelations were two kinds- manifest (zahir) and internal (batin). Manifest revelation is communication which is made by angel Gabriel under the direction of god to Mohammad in the very words of god. Quran is composed of manifest revelations.

3. Ijma
It was equally binding on the people to act on a principle (not contrary to the Quran or hadis ) which had been established by agreement among highly qualified legal scholars of any generations.

Ijma has been defined by Sir Abdul Rahim as agreement of the jurists among the followers of Prophet Mohammad in a particular question of law. The validity of ijma, as containing a binding precedent, is based upon a hadis of the prophet which says that god will not allow His people to agree on an error. Ijma thus become a source of law. According to the classical theory, failing Quran and traditions, and consensus of opinion amongst the companions of the prophet is recognized as the best guide of law. Thus it is the third source of law, both in point of time and importance.

4. Qiyas
This is a last primary source of Muslim law. Qiyas means reasoning by analogy from above 3 sources i.e., Quran, Sunna and Ijma. In Qiyas rules are deduced by the exercise of reason.
Qiyas may be defined as a process of deduction by which the law of the text is applied to cases, which though not covered by the languages are governed by reason of text. Thus, it should be noted that Qiyas does not purport to create a new law, but merely to apply old established principles to new circumstances.

Secondary Sources
These sources are not basic sources of Muslim law but the supplementary sources of Muslim law. The secondary sources of Muslim law are:

Urf or Custom
Judicial decision
Legislation
Equity, Justice, & Good conscience

1.Urf or Custom
Before the emergence of Islam in Arabia , customs were the basis of entire social life, religion, morality, trade and commerce. Custom has not been recognized as a source of law in a Muslim law. However, it cannot be denied that custom has always been given a place under Muslim law, if it is in conformity with Muslim law. For example, prophet mohammad never repeal the whole of the pre-Islamic customary law of Arabia.

2.Judicial Decision
These includes the decisions of privy council, the supreme court & high court of India, Judges explain what law is. These decisions are regarded as precedents for future cases. Judicial decision is one of the distinguish characteristic of English law. In India, the plan of Warren Hastings of 1772 made provision that it was only judiciary which introduced new set rules in personal laws of Hindus and Muslims.

3. Legislation
In India, Muslims are also governed by the various legislation passed either by the parliament or by state legislature. The following are the examples of legislation in India.

The usurious loans act, 1918
Religious toleration act
Freedom of religion act, 1850
The mussalman wakf validating act, 1930
The shariat act, 1937
Dissolution of Muslim marriage act, 1939

4. Justice, equity and good conscience
The doctrine of equity, justice & good conscience is regarded as one of the source of Muslim law. Abu Hanifa, the founder of hanafi sect of Sunni, expounded the principle that 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 literally means approbation and may be translated as liberal construction or juristic preference.

Conclusion
These four sources namely Quran, Sunna, Ijma and Qiyas are the primary sources of law. Muslim law mainly based on verses of Quran and practices of hadith. There is secondary source of Muslim law which subsequent of it. Sects of shias does not accept the Qiyas as source of Muslim law. It is due to the contribution of all that an orderly and systematic theory of personal laws of Islam came into existence which govers the Muslim community.

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