What are the sources of Muslims laws?

(i) First Source of Law: Quran

According to classical theory, the Quran is the first source of law. Its importance is religious a spiritual, no less than the law, A verse (Ayat) of the Quran is always held of paramount authority. The Quran although resembles a code, in that it derives all its authority from itself, yet it does not in any portion of it, profess to be a code complete in itself.

The Quran was revealed to Prophet through Gabriel in fragments, during the period of 22 years (609 A.D. to 632 A.D. after Christ). Either God would send message or Prophet would put his queries and would in turn get a reply in the form of message. All these messages (Verses – Ayats) were memorised by the Prophet (he was illiterate and did not know reading and writing) and then by his followers.

His followers also had put down the memorised verses (messages) on Date-tree or palm tree leaves, white stones and even on their breasts. Abu Bakr who succeeded Prophet sought for the Quran and collected it for the first time. The compilation work was finally completed by Usman, the Third Caliph and he put them in book form, the Quran. All the transcripts now existing are from Usman’s edition and since then there has been no alteration. Probably no other work in the world has remained for centuries so pure a text. There are 6000 verses (Ayats) set out in the Quran in order of revelations. 200 of them deal with law and only 80 of them deal with personal law. It is alleged by Shias that Usman has suppressed the revelations about Ali.

(ii) Second source of Law: Sunna (Traditions of Prophet)

According to classical theory of Fiqh, the second source of law is Sunna or the traditions of practice of the Prophet. The principles laid down in Quran found their way in the hands of the Prophet. The Prophet lived strictly in accordance with the injunctions of the Quran and his was the Model Behaviour. Practices, precedents and traditions of Prophet Muhammad are known as Sunna. The terms Sunna and Hadis must be distinguished and understood. Hadis is the narration of a particular occurrence in the life of the Prophet of Islam whose was Model Behaviour. The rule of law deduced from the Hadis is called as Sunna the word Sunna in Pre-Islamic time, was used for an ancient and continuous usage, well established in the community.

Later, after the advent of Islam, the term was, however, used to mean the practice, precedents and traditions of Prophet Muhammad. Sunnas are classified in three groups (1) Sunnatul-fil, what the Prophet did (2) Sunnatul- taqrif – the Action – conduct done in presence of Prophet with his approval or rather without his disapproval and (3) Sunnatul-qual – the Prophet enjoined expressly by words. Ahdis (plural of Hadis) are not written down or noted anywhere. There are many collections of Hadis. The authoritative collections are those of Tirmidhi, Bukhari, Muslim, Samin and Sasai. Although modern research tend to show that a large number of traditions (Hadis) ascribed to the prophet are of late origin and therefore not free from doubt, nevertheness, their importance, in law, is never minimized. It may also be well remembered that Shias give no credence to a Hadis which does not come from the House of Ali.

(iii) Third Source of Law: Ijma (agreement and Juris-Consults)

According to the classical theory of Fiqh, the third source of law is Ijma. Failing the Quran and direct precedents or practice of the Prophet himself, the best guide to the law was the consensus of his companions. Muslim Doctors (Faqihs) define Ijrna as agreement of jurists amongst the followers of Muhammad in a particular age on a question of law. In Ijma, opinions of Juris-consult coincide. Although the Muslim legists (Doctors) give it the third place, the modern critics consider it to be the most important. A tradition summarises the principle: ‘My community will never agree upon error.’ Rules deduced on the basis of Ijma have varying degree of sanctity in different schools. But all schools agree that where there is a valid agreement amongst juris-consults (Fakih), no divergence can be allowed. In other words, once Ijma (Agreement of Juns-consults) is established it cannot be repealed.

The Ijma of companions of prophet rank first. The next in order are the Ijma wherein jurists agreed and others did not dissent. The agreement of Juris-Consults on a new point come third in order and last ill them come the Ijma on which earlier there was disagreement amongst juris-consults. Hanafis regard as a fundamental source whereas Shafis give second place. Malakis place Ijma of scholars of Madina above others.

(iv) Fourth Source of Law: Qiyas (Analogical Deductions)

The Fourth Source of law, according to the classical theory of Fiqh, is Qiyas. Qiyas means analogical deductions. Qiyas does not lay down a new principle but it is a kind of permissible exigency. Qiyas is a weak kind of Ijtehad. The term ‘rai’ and ‘qiyas’ are often misconstrued, individual reasoning ill general is called ‘rai’ opinion. Y\’l len rai (opinion) is directed towards achieving systematic consistency or decision it is called Qiyas. Hambalis oppose the Quiyas so also Shias (because, according to them, only Imams can change he law). Shafis also regard Ijtehad and Qiyas as contradictory of their views.

(v) Other sources of Law

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

(b) Isti Salah – Public interest

(c) Ijtehad – Exercising one’s own reasoning to deduce rule of law (Shariat)

(d) Taqlid – Law of Precedents

(e) Fatwa’s – Decisions of Muslim Judges.

(a) Isti Hasan – Juristic preference – Equity

Imam Abu Hanifa adopted the principle of Isti Hasan for the relief from absolute dependence on analogical reasoning. Isti Hasan literally means liberal construction or juristic preference or what we call today as law of equity. This term was used to express liberty of laying down such rule as may be necessary and the special circumstances may require. The objection taken against it is that it left an almost uncontrolled discretion in the exposition of the law.

(b) Isti Salah- Public interest

Imam Malik, who will be presently mentioned as the founder of a school of Sunni law, also felt the necessity of surer test for the development of law on right lines than the use of analogy. He approved the introduction of Isti Salah (public interest) in preference to Isti Hasan. He laid down that ordinarily, analogy was used to expand law but if it appears that a rule indicated by analogy is opposed to general utility then Isti Salah (principles of public interest) should be resorted to. Under this system, rule of law pointed out by analogy could not be set aside either: (i) on the opinion of the individual expert of the law of (ii) with reference merely to the circumstances of particular case: it could be disregarded only if it would be harmful to the public in general.

(c) Ijtehad – Exercising one’s own reasoning to deduce rule of law (Shariat)

When Quran and Hadis did not disclose the precise line to follow, Ijtehad came to be born. Ijtehad means independent judgement or considered opinions of individuals or exercising one’s own reasoning to deduce a rule of Shariat. As a method of reasoning in law, Ijtehad of prophet tersely has gained almost equal footing with the first four founders of the law. In deducing Ijtehad, Quran and Hadis cannot be over looked but exigency of time and public interest were also to be borne in mind. Where a legal principle is silent, Ijtehad can be used with advantage.

But Ijtehad was the privilege of great scholars or Mujtahids. The authority of the Mujtahids (great scholars) based not on his holding any office in the State but is derived purely from the learning and reputation of the individuals. The qualifications of the Mujtahids consists of a complete knowledge of Quran i.e., he should know the sacred text by heart and should be able to say when and where each verse was revealed and he should also have a perfect knowledge of all the traditions (Sunna-Hadis) and all the branches of the science of law. He should, besides, be a man of austere piety. In short, the qualifications required are such that as far as the Sunni Law is concerned, after the death of Ibne Hanbal (856 after Christ) there have been no recognised Mujtahids. With the end of Mujtahids, the doors of Ijtehad no longer remained open. This is known as the closure of the golden gate of Ijtehad – Bab-al ijtehad.

(d) Taqlid – Law of Precedents

After Ijtehad or rather on the closure of the Gates of Ijtehad, a parallel doctrine of Taqlid (Law of precedents) came to be in existence. Under Taqlid (literally, imitation) means following opinions of another person without knowledge o the Authority or the authority for such opinion, a Muslim had to follow the Law; every Muslim in the street could not be learned in the rules of Shariat, being ignorant, he was asked to follow the opinions of those who knew better. Those who knew better (Ulemas) were denied independence of judgement in any vital matter. Hence, the vicious circle of Taqlid (imitation – Law of Precedents).

(e) Fatwas – Decisions of Muslim Judges

As already aforesaid, the Law sent down by Allah by direct revelations is recorded in Quran and what is sent down by him is recorded in Sunna/Sunnat of Prophet of Islam. Even the King has no authority to make law and therefore, the Muslim Kings called upon the Muslim scholars to guide them in the matter of Law. The opinions tendered by Muslim Jurists to King were accepted by King of enforce the Law in the territory of his kingdom. Therefore, the opinions of Muslim Jurists were always held in high regard. With the advent of time, even the ordinary Muslims would turn to such jurist and ask for his opinion. Such opinion of Muslim Jurist is referred to as Fatwas. In India, during the Seventeenth Century A.D. when Mughal Emperor Aurangazeb came in power, he appointed Shaykh Nizam Burhanpuri and four others to prepare a compilation of Fatwas. Accordingly, they sent questionnaire various juris-consults and Muftis. Their Replies are the collection of Fatwas, popularly known as Fatwa-e-Alamigir. However, Fatwas are not source of law.