Table of Contents
INTRODUCTION
If a rather reductionist synoptic may be allowed, Islam may perhaps be the comparison between the three Abrahamic sects, placed halfway between what might be considered legalistic Judaism and theological Christianity.[1] That’s because it’s almost unquestioned in modern Islam that it is only lawful to determine the will of God expressed in the Quran and Sunnah. Islam holds that these primary sources (Qu’ran and Sunnah) are believed to constitute the authentic and genuine sources of religious and legal practice and basic origins of law are related to them organically. It is thus commonly agreed that no human innovation in jurisprudence that directly contradicts the Qur’ān and the Sunnah has ever continued to be included in the literature body governing the rituals and worship of Muslims. Furthermore this article looks into the secondary sources of Islamic Law which are the Ijma and the Qiyas. Finally it looks into other sources of Islamic Law which are not the basic sources of Muslim law but the supplementary sources of Muslim law. They include Urf or custom, judicial decisions, legislations and equity, justice and good conscience (Istihsn, Itislah & Istidal).
PRIMARY SOURCES OF ISLAMIC LAW
The Qur’an and the Sunnah are the primary sources acknowledged unanimously by all Muslims. The Qur’an is Islam’s holy scripture, believed by Muslims to be Allah’s clear and unaltered word. The Sunnah consists of the Islamic Prophet Muhammad ‘s religious actions and quotes and is recounted by his followers and Shia Imams. However, some jurisprudence schools use various methods to determine the degree of authenticity of the source.
2.1 QURAN
The first and most significant source of Islamic law is the Qur’an. The sacred text characterizes the strict, moral, philosophical, social, political and financial premise on which a network should be established. It is accepted to be the immediate expression of God as uncovered to Muhammad through the holy messenger Gabriel in Mecca and Medina. The stanzas uncovered in Mecca manage philosophical and religious inquiries, while financial laws are worried about those uncovered in Medina.[2]
The Arabic word Qur’an comes from the root ‘qara’a’, meaning “to read” or “to recite.”[3] The Qur’ân is Islam’s holy book. During Muhammad’s life, the Qur’an was written and preserved and compiled soon after his death. 114 surahs (chapters) of over 6,000 ayat(verses) form the Qur’an. The exact amount of ayat, be that as it may, is challenged in view of different techniques for counting.[4]
Muslim legal advisers acknowledge that the Qur’an is anything but a legitimate code completely; its point is to make a lifestyle that administers the relationship of man with others and God. The Qur’an refrains are separated into three fields: “study of philosophy of theory,” “moral standards,” and “laws of human direct.” The third gathering manages Islamic lawful issues, which contain around 500 or one-thirteenth of the sections of it.[5]
The shari’a, the mainstays of Islamic law, were taken from the Qur’an sections. The main part of the Quranic matter comprises essentially of wide, general good rules with regards to what the destinations and aspirations of Muslims, the ‘want’ of Islamic strict morals, ought to be.[6] Shariah, the foundation of Islamic law, is gotten from the Qur’an refrains. The Quran comprises principally of expansive general good mandates which accommodate a Muslim’s motivations and goals.”In pith, since the guidelines are so broad, understanding assumes a significant function, there have been so a wide range of translations of the Quran, asserts that Islamic mastermind Abdul A’ala Maududi has been generally perused and esteemed that” there is not really any order to be found with a concurred interpretation.[7]
The Hadith, the compilation of Islamic scriptures from which the specifics of early Islamic history are derived, is by far the most significant external aid used in interpreting the meanings of the Qur’an.
Nonetheless, no Muslim scholar or organisation has ever doubted the validity of the Qur’an.
2.1.1 THE QURAN AND IT’S TEXTUAL CRITICISM
By testing since quite a while ago held suppositions about the foundations of the Bible, higher scriptural analysis altered Judaism and Christianity; some idealistic literary pundits are attempting to do likewise with the Qur’an. They contend that pieces of the Qur’an depend on stories from the Tanakh (Hebrew Bible), the Christian Bible’s New Testament, and other non-accepted Christian works; varieties from the Qur’anic adaptations of the Bible recommend to certain researchers that these accounts were not taken straightforwardly from composed sources, however appear to have been important for the oral customs of Muhammad’s Arab Peninsula.[8]
This understanding, nonetheless, is upside down for Muslims: the “non-accepted” Jewish and Christian stories are only more printed debasements of a generally nearly lost heavenly unique exemplified in the Qur’an.
Confidence in the immediate, uncorrupted celestial foundations of the Qur’an is fundamental to Islam; this incorporates, obviously, accepting that there are no slip-ups or inconsistencies in the Qur’an. (‘This is the book, a manual for the adherents, wherein there is no uncertainty’: Surat al-Baqarah, stanza 2.)[9]
It is, however, well-known that certain chronologically later verses supersede earlier verses-for example, the forbiddance of wine was done dynamically as opposed to promptly and a few researchers have contended that a few stanzas that debilitate certain practices (for instance, polygamy) without completely prohibiting them should be deciphered as a component of a comparative technique. There are three fundamental points, repeated and reaffirmed throughout the work, as to the basic message of the Qur’an. They are as follows: this present physical existence is a test; the afterlife is certain; the next one has ramifications for our actions in this present life.
2.2 SUNNAH
The Sunnah is the following critical source and is commonly portrayed as “Muhammad’s practices and customs” or “his words, conduct and quiet affirmations.” It contains Muhammad’s continuous platitudes and expressions, his lead, his understood endorsement, and affirmations of explanations and occasions. The sunnah additionally contains the terms, demonstrations and affirmations of the twelve Imams and Fatimah, the daughter of Muhammad, who are viewed as dependable, as per Shi’ite jurists.[11] Justification can be found in the Qur’an for utilizing the Sunnah as a premise of law. Muslims are requested by the Qur’an to obey Muhammad. Muhammad made it clear during his lifetime that, after his demise, his customs (alongside the Qur’an) should be noticed. The sunnah is considered by far most of Muslims to be significant increases and explanations of the Quran. The Qur’an gives numerous rules to the normal lead of Muslims in Islamic statute, however there are no reasonable Qur’anic rules on numerous religious and viable issues. Muslims guarantee that to realize what to copy and what to maintain a strategic distance from, they should take a gander at the lifestyle, or sunnah, of Muhammad and his companions.
Many of the traditional books were collected by the Prophet ‘s companions. These were later integrated into the large Hadith (i.e. traditions) collections of Bukhari, Muslim, etc. In collecting the traditions, the collectors of the traditions followed a rather scientific method. Except for the chain of narrators, they documented no tradition at all. Each tradition gives the name of the last traditional narrator from whom he heard the tradition, and so on, back to the Prophet.[12]
In the Hadith, most of the Sunnah is reported.[13] Muhammad had initially told his followers not to write down his actions, so they would not confuse the Qur’an with it. He did, however, urge his followers to orally distribute his sayings. As long as he was alive, by simply questioning him, any doubtful record could be verified as real or false. However, his death gave rise to confusion about the actions of Muhammad. The Hadith was thus created.
The Quran and Sunnah are complimentary. The Quran’s meaning is universal in nature, and the Sunnah makes it unique and unique. The Sunnah explains the Quran’s guidelines. Sometimes the Quranic injunction is implicit; by presenting basic ingredients and descriptions, the Sunnah makes it clear.
SECONDARY SOURCES OF ISLAMIC LAW
As Islamic guidelines referenced in the essential sources don’t manage each possible consequence, to locate the right game-plan, law should speak to resources and valid archives. As per Sunni law schools, agreement among Muslim legal advisers, analogical derivation, al-Ra’y, free thinking, Group advantage and custom are optional sources of Islamic law.[14] If the essential sources (for example the Qur’an and Sunnah) are quiet regarding the matter, all archaic Muslim law specialists dismissed discretionary assessment and rather settled various auxiliary sources, otherwise called lawful standards or principles to comply. The two auxiliary sources are Ijma and Qiyas and they determine their worth or authority from the Quran and the Sunnah. In this manner, they are called secondary sources.
3.1 IJMA
The third source of rule, Ijma or the scholars’ agreement, signifies the importance to the Muslim community of delegated legislation. Such a rule allows Muslim community to have the power to solve the practical problems of Islamic Shariah (Islamic Law) enforcement. Technically, Ijma was defined as the jurists’ consensus on a religious matter over a certain period of time. Ijma is considered to be adequate evidence for action because if Islam said, “Muslims would never agree on a wrong issue,” the Prophet’s agreement on any religious matter by the scholars of Islam is therefore a source of law in Islam. [15]
Ijma is of three kinds-
- Ijma of the mates of the prophet is the consensual perspective on the companion that is commonly suitable and permanent in the Muslim world.
- Ijma of the Jurists is the consensual assessment of legal advisers viewed as their most grounded ijma after associates’ ijma. The two legal advisers ought to sit together and examine the thinking, and most law specialists are of the assessment that Ijma is consistent.
- Ijma of the People-It is the view that the Muslim people group in general may make them mean, yet in genuine practice the ijma of the Muslim public had little significance in legitimate issues, however there was more worth joined to it in issues identified with love, petition and other observances.[16]
3.1.1 IJMA OR THE UNANIMOUS AGREEMENT
Ijma speaks to the consistent concurrence and unanimous agreement on a particular issue by a gathering of legal scholars of a specific age and speaks to the fourth and last source of law in the procedure of Shafi’i. Law specialists applied their own reasoning (ijtihad) to go to an arrangement if concerns emerged with respect to a Quranic understanding or an issue where there was no explanation from either the Quran or sunnah.[17] There are different perspectives on ijma’ among Muslims. Sunni legal advisers consider ijma’ as a source, in issues of enactment, as significant as the Qur’an and Sunnah. Shiite legal advisers, nonetheless, consider ijma’ as wellspring of optional significance, and a source that is, not normal for the Qur’an and Sunnah, not liberated from blunder. Ijma’ was constantly used to allude to arrangements came to previously, either far off or near.[18]
One understanding will be embraced by more and more law doctors over time. Looking back in time at the scholars’ evolved consensus, it could be inferred that this topic had been reached by an ijma of scholars. Sadly, universal agreement seldom existed among the intellectual elite and because there were still different views, many scholars of the day who agreed on a topic could always be identified.
Also, a point of dispute was the concept of ijma and which ijma would be considered legitimate, since ijma is not necessarily the consensus of all previous jurists. In addition, the use of the idea of ijma raises the issue of having to look to the past to solve the problems of the future, and yesterday’s scholars did not answer the same problems that threaten Muslims today.
3.2 QIYAS
Qiyas is the fourth source of Sharia for Sunni jurisprudence, or analogical deduction. Shiites do not accept qiyas, but use justification (aql) to replace them. Qiyas is the legal deduction procedure according to which, facing an unprecedented situation, the jurist bases his or her reasoning on the rationale used in the Qur’an and Sunnah. Qiyas must not be founded on personal opinion, but rather on primary sources that are deeply rooted.[19]
For instance, since the Quran clearly describes why alcohol consumption is forbidden (because it causes the consumer to lose control of his behaviour), an analogy can be made to drugs that cause the same effect. But Muslims do not justify banning another meat product with a similar cholesterol amount, etc., since the Quran does not explicitly state the reason why pork is forbidden. The use of analogies varied widely among scholars; for example, the use of qiyas was opposed by Ibn Hazm (10th century) of Spain, who was a formidable proponent of the Zahiri school, while Imam Abu Hanifa of the Hanafi school (8th century) used them extensively.[20]
In relation to issues on which there is no clear provision in the Quran or the Sunnah of the Prophet, Qiyas or analogy is resorted to. In such questions, the scholars derived law on some related circumstances through analogical deduction on the basis of the provisions of the Quran and the Sunnah. The scholars in the books of Islamic jurisprudence have established detailed concepts of analogical deductions or Qiyas.
Qiyas is a kind of Ijtihad. Ijtihad, which literally means ‘to exert’, was authorised by the Prophet. Technically, it means exercising in order to make an objective decision on a legal issue. In the light of the general concepts of the book of Allah (SWT), the Qur’an and the teachings of the Prophet or the Sunnah, Ijtihad is the Islamic way of facing new circumstances and problems.[21]
https://legalreadings.com/analytical-school-of-jurisprudence//
OTHER SOURCES
These sources are not the basic sources of Muslim law but the supplementary sources of Muslim law. They are the following-
- Urf or Custom
- Judicial Decisions
- Legislations
- Equity, Justice and Good Conscience (Istihsn, Itislah & Istidal)
4.1 URF OR CUSTOM
Customs were the establishment of all public activity, confidence, profound quality, exchange and trade before the coming of Islam in Arabia. In Muslim law, the convention has not been acknowledged as a premise of law. It can not, in any case, be rejected that, under Muslim law, custom has consistently been conceded a position in the event that it is in consistence with Muslim law. For example, the Prophet Mohammad never annulled Arabia ‘s whole pre-Islamic standard law.
Custom assumes a significant function in different issues of Muslim law when the issue identifies with their-
- Agro-ranch land;
- Testamentary progression between certain gatherings; and
- Noble cause other than wakf, since in segment 2 of the Shariat Act,1937, these issues have not been incorporated. [22]
The creation and arrangement of shariah was affected from multiple points of view by customs:
- Various writings depend on traditions, especially conventions.
- Numerous Arab customs remember a part of the shariah subordinate for the certain or quiet endorsement of the prophet.
- Imam Malik noticed that, without different records, the standard direct of the residents of Medina was a satisfactory ijma to be depended on.
4.2 JUDICIAL DECISIONS
These incorporate the decisions of the Privy Council, India’s Supreme Court and High Court, which are explained by judges. For expected cases, these decisions are known as points of reference. Legal decisions are one of English law’s distinctive attributes. In India, Warren Hastings’ 1772 arrangement given that it was just the legal executive that actualized new conditions in the individual laws of Hindus and Muslims.[23]
Here are an assortment of legal choices that have brought Muslim law another measurement:
In Maini Bibi v. Choudhry Vakil Ahmad[24], the Privy Council held that a widow has the privilege to hold her better half’s property until her dower cash has been redressed.
The Supreme Court gave another way to deal with the upkeep law in Bai Tahira v. Ali Hussain[25] The Supreme Court decided that, regardless of whether a lady has gotten a single amount under her standard resolution, she would be qualified for upkeep under segment 125 of the Criminal Procedure Code.
The apex court as of late held the plan of moment separate by articulating the word ‘talaq’ multiple times orally illegal in the main instance of Shayara Bano v. Association of India[26], since the privilege to moment separate is just with men and not with ladies. Besides, the plan is subjective and, in this way, infringing upon Article 14.
It can hence be gathered that the courts in India have, somewhat, looked to change the laws of Muslim individual law as they are implemented in India. These standards by decisions, except if overruled or negative by any legal establishment, keep on being a source of Muslim law.
4.3 LEGISLATIONS
Muslims in India are also controlled by the various laws passed by either the parliament or the state legislature. The examples of legislation in India are as follows-
- 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
The Muslim law was extraordinarily influenced, enhanced and revised by these demonstrations. A demonstration in 1986, for example, the Indian Parliament authorized the Muslim Women ( Protection of Rights on Divorce) Act, 1986, to give separate enactment to separated from Muslim ladies. As per the requirement for time and conditions, the enactment was passed by the Indian assembly to fulfill the need
4.4 JUSTICE, EQUITY AND GOOD CONSCIENCE (Istihsn, Itislah & Istidal)
One of the establishments of Muslim law is the way of thinking of correspondence, equity and great confidence. Abu Hanifa, the organizer of the Sunni Hanafi faction, explained the possibility that the similarity based principle of law might be put aside by the liberal development or juristic inclination judge’s decision to satisfy the prerequisites of a particular case. Such standards of Muslim law are alluded to as Istihsan or legitimate value. In a real sense, Istihsan implies acknowledgment and can be deciphered as liberal development or juristic inclination. [27]
This word was utilized by the extraordinary legal scholar Abu Hanifa to communicate the correct he guaranteed to set some hard boundaries required by the particular conditions in his prudence, as opposed to the law suggested by analogy.[28] Several Muslim zones have been changed to suit the changing conditions in India.
CONCLUSION
These four sources specifically Quran, Sunna, Ijma and Qiyas are the essential wellsprings of law. Muslim law basically dependent on stanzas of Quran and practices of hadith. There is auxiliary wellspring of Muslim law which ensuing of it. Groups of shias doesn’t acknowledge the Qiyas as wellspring of Muslim law. It is because of the commitment of all that an organized and efficient hypothesis of individual laws of Islam appeared which govers the Muslim community. It could be reasoned that the superstructure of Islamic Jurisprudence is established on Quranic sections and conventional expression of the Prophet, yet different sources have additionally helped a great deal in building up the consecrated law in its current structure. It is because of the commitment of the relative multitude of wellsprings of Islamic law that a deliberate and orderly hypothesis of the individual laws of Islam appeared, which oversees the Muslim community.
REFERENCES
[1] Ahmed Souaiaia, “Sources of Islamic Law and Practices” 20 Journal of Law and Religion 101-125 (2005).
[2] Muhammad Razii, The Sources of Law Under Islamic Law: An Introduction
(2017) (Unpublished P.h.D. thesis,International Islamic University Malaysia).
[3] “The Four Main Sources Of Islamic Law Religion Essay.” UKEssays, November 2018, available at: https://www.ukessays.com/essays/religion/law-sources-of-islamic-law-religion-essay.php (last visited on October 28, 2020).
[4] Id.
[5] Id.
[6] M. Cherif Bassiouni, “ Islamic Law- The Sharia”, Middle East Institute, January 24, 2012, available at: https://www.mei.edu/publications/islamic-law-shariah#:~:text=The%20Qur’an%20is%20the,which%20are%20part%20of%20creation (last visited on October 28, 2020).
[7] Id.
[8] Supra note 3.
[9] Fethullah Gülen, “This is the Book: There is no doubt about it…” (Al-Baqarah 2:2)”, fgulen.com, 26 July, 2012, available at: https://fgulen.com/en/fethullah-gulens-works/reflections-on-the-quran/suratu-l-baqarah-the-cow/al-baqarah-2-2 (last visited on October 28, 2020).
[10] The Qur’án (translation by Arthur J. Arberry), 5.3.
[11] Supra note 2 at 2.
[12] “Ḥadīth. A collection of traditions from Al-Bukhari”, British Library, available at: https://www.bl.uk/collection-items/hadith-collection (last visited on October 28, 2020).
[13] Onder Bakircioglu, “The Principal Sources of Islamic Law”, Islam and International Criminal Law and Justice 15-43 (2018).
[14] Supra note 3.
[15] George F. Hourani, “The Basis of Authority of Consensus in Sunnite Islam”, 21 Studia Islamica 13-60 (1964).
[16] Hemant More, “Sources of Muhammadan Law- The Ijma and the Ijtehad” The Fact Factor, available at: https://thefactfactor.com/facts/law/civil_law/family_laws/muhammadan_law/ijmaa/897/ (last visited on October 28, 2020).
[17] Supra note 3.
[18] Mohd. Harris Usmani, “ Sources of Islamic Law”, Legal Service India, available at: http://www.legalserviceindia.com/article/l302-Sources-of-Islamic-Law.html (last visited on October 28, 2020).
[19] Ibid.
[20] “Islamic Sources of Information and their Development into Islamic Law”, Muslim Women’s League, available at: https://www.mwlusa.org/topics/sources/sources.html (last visited on October 28, 2020).
[21] Supra note 16.
[22] The Muslim Personal Law (Shariat) Application Act, 1937.
[23] Shambhavi Ravishankar, Understanding the Creation of the Indian Judicial System, Lawctopus, January 16, 2015, available at: https://www.lawctopus.com/academike/understanding-the-creation-of-the-indian-judicial-system/ (last visited on October 28, 2020).
[24] (1925) 27 BOMLR 796.
[25] 1979 SCR (2) 75.
[26] (2017) 9 SCC 1.
[27] Kirti Pamar, “Sources of Muslim Law”, Legal Service India, available at : http://www.legalserviceindia.com/legal/article-1876-sources-of-muslim-law.html (last visited on October 28, 2020).
[28] Id.
BY KAREN BOBBY | CHRIST UNIVERSITY