CONCEPTUAL ANALYSIS OF PRIMARY SOURCE OF MUSLIM LAW

ABSTRACT

India is one of the oldest and most followed religions all over the world. As our preamble defines
the term secularism, it hereby means that India is purely a secular country that respects all
religion, language & caste, where more than 15% population being Muslims who regulate their
activities according to All India Muslim Personal Law, Muslim law is a religious law and it
applies to all such person who is Muslim by birth or proselytizing. Moreover, the personal
Islamic Law’ is overall based on a man’s obligations and duties rather than his rights. This
article mainly talks about four main sources of Islamic Law.

It aims to develop some of the concepts of Islamic thought and to analyze the distinct discipline
and philosophies that shape the practice of Islam throughout the nation. There are four major
Muslim schools of thought; therefore, each differs from their interpretations. The primary
sources of Muslim law universally accepted by all Muslim communities are the “Quran” and the
“Sunnah”. It is moreover, they are silent that the secondary sources are to be used in the field,
thereby the “Qiyas” (laws derived through analogical deduction -analogy) and the “Ijma”
(consensus of scholars).

INTRODUCTION

In a broad sense, Muslim means any person who is willing to submit to the will of the god shall
be deemed as Muslim. Thereby, all the prophets including Prophet Mohammad are deemed as
Muslim. Further, the Muslim Law has originated from primary as well as secondary sources.
Primary sources are such sources which were directed by Prophet Mohammad. It is necessary to
follow such sources in their respective order of priority, it is known as a formal source of law.
Islamic laws are originally linked with the primary source. These sources deal with the needs of
the individual in the Islamic society in the modern era. Most of the medieval Muslim jurists have
declined arbitrary opinions, views, and instead developed the copious secondary source. It is well
known as juristic philosophies, doctrine and principle to follow in the case of Primary sources
(mainly, Quran and Sunny) are silent on such issues. The groundwork of Islamic Legal System
was developed by Arab-jurists, the main head of the Islamic jurisprudence is to be founded at the
pre-Islamic Arabian customs, usages and practices of the 7th century of the Christian era.

PRIMARY SOURCES OF MUSLIM LAW

Primary sources are such sources of law which the Prophet Mohammed himself directed to be
the source of Muslim law. Therefore, these sources are of the highest quality and importance in
their respective order. These sources are universally accepted and they are deemed as a primary
source which means these sources shall have relied before any other source exists. The four
incumbent sources of Muslim Laws are as follows:-

1.QURAN

The holy “Quran” which is regarded as the finest piece of classical Arabic literature is a book of
revelation which the almighty revealed to the beloved Prophet Muhammad, through angel
“Gabriel/jibril”. It consists of 114 chapters containing 6236 “ayats' ' compiled over 23(twenty
three) years starting from 609 C.E to 632 C.E. Most of the laws in the Muslim world and
jurisprudence are derived directly or indirectly from the holy “Quran” like laws relating to
marriage laws relating to Islamic inheritance , laws with regard to “Talaq”{( sura
Al-baqarah-2(228-232)} etc. Respect and authority commanded by holy “Quran” is so much so
that it is a common perception in the whole Muslim world (irrespective of sects) that this book is
inimitable( the reason why it is also called “I‟jaz'' ie something which is incapable of being
imitated. The most important and noteworthy thing in this relation is that Quranic science is a
sensitive science as even contextual things are there which if not taken into account may not be
understood wholly. Quranic tradition is basically and predominantly an oral tradition and was
transmitted by that mode only to the next generation . Although the dominant theme of “Quran”
is monotheism and eschatology ie the final fate of the universe and the judgment day on which
almost one third of the Quranic verse/ayats are devoted yet with regard to almost all the aspects
and matters pertaining to human‟s life Quran has ordained divinely what the correct course of
procedure ought to be. A very obvious question which comes to our mind with regard to Muslim
law and jurisprudence is that when everything can be traced back to the holy Quran then what is
the need and necessity of other sources of law which are there. The answer to this question is
given in the holy Quran itself in surah Al-Araf-(7/157) wherein the almighty reveals the very
purpose and objective of sending Prophet Muhammad on this earth.

It is a book containing word-by-word instructions and commandments of Allah communicated to

prophet Muhammad through angel Gabriel. It is the fundamental source of law. The Koran was
revealed in 22 years and some months. Out of this, revelation in Mecca was for 12 years, 5
months and 13 days. And remaining in Medina. It is divided into 114 chapters, called ‘souras,
each having a separate designation. The Koran contains about 6000 verses called ‘Ayats’. The
verses dealing with law do not exceed 200 and were revealed at Madina. The revelations made at
Mecca pertain to theology, Islam and philosophy of life. In interpreting Koran, one principle has
to be observed. Some verses are abrogating (Nasik) and some abrogated (Munsuk). The latter
verses are deemed to be repealed by earlier ones.

Since the Koran is of divine origin, it is postulated that Muslim law cannot be changed or
modified by any human agency. Thus, in India, the Muslims proclaim that the union parliament
or the State Legislatures cannot reform their law. However, such a contention of Muslims has
been disregarded in many Muslim countries. The importance of the koran is religious, spiritual,
legal, political, moral and social etc, its legal importance lies in the fact that it contains 200
verses relating to law, out of which 80 verses relate to family law and the rest deal with state and
polity. The basis of Muslim Law relating to marriage, dower, divorce guardians inheritance, etc
is provided in the Koran.

2. SUNNA

The term “ Sunna” literally means a path, a procedure and a way of action. In preIslamic times
the word “Sunna “ stood for ancient and continuous usage of the community. In Muslim law, the
term has come to mean the practice of the Prophet, which comprises his sayings, deeds and tacit
approvals. The word “Sunna” is often confused with “Hadith” However Hadith is a story of a
particular occurrence or instance, while Sunna is the rule deduced from the instance or
occurrence. Sunna is classified according to its time of compilation, narration and authenticity,
Like the Koran, Sunna is also not confined to legal norms. Sunna also deals with theology, trade,
ethics, government, etc. The importance of Sunna as a source of Muslim Law has been laid down
in the Koran emphasized by the Prophet, recognized by his immediate successors and other
companions, and accepted by all the important Muslim jurists.

A verse in the Koran runs as, whatever the Prophet gives, accept it and whatever he forbids you,
abstain from it (49.7)’. It also says” “he does not speak out of his desire. It is ought, but the
revelation revealed (to him). The Prophet once said to his followers: so long as you hold fast to
two things, which I have left among you, you will not go astray; viz; God’s Book and His
messenger’s sunna. The successors of the Prophet followed the practice of the Prophet. If they
did not know of any decision of the Prophet on a subject, they made enquiries from His
companions about it, and if any of them informed them of any Hadith on the subject, they
decided the case accordingly. They however, always tested the reliability of the traditions. All the
important orthodox Muslim jurists are unanimous in upholding the validity of Hadith as a source
of Islamic Law. The purpose of Sunna is exposition, explanation, and supplementation of the
Koran. In other words, it is a key to the understanding of the teachings of holy Koran and a guide
to the implementation of the principles and laws enunciated in Holy Koran. Muslim law relating
to gifts, wakfs and pre-emptions was introduced in Islam through the agency of sunna laws
relating to marriage, dower, divorce, wills etc. though enshrined in koran, were developed to a
great extent by traditions of the Prophet.

3.IJMA

The “Ijma” means an agreement, among followers of Muhammad (PBUH) in particular, on a

question of law. Fayzee, a contemporary authority on Muslim Law, defines ‘Ijma’ as a consensus
of opinion among learned or defines ‘Ijma’ as a consensus of opinion among learned of the
community. The majority of jurists regard it as the third source of Shariah, but modern jurists
consider it to be the most important element in Islamic law. The authority of Ijma as a source of
law is based on the Koran and the Sunnah as well as upon reason. “O ye who believe; obey God
and obey the Prophet, and those of you who are in authority, and if ye have a dispute concerning
any matter, refer it to God and the prophet” (Koran 4:5a) “There can be no consensus on error, or
misguided behavior amongst my people”.[Hadith] Ijma may be constituted by decisions
expressed in words or by practice of jurists. Both are equally authoritative. The important
requirements for the validity of Ijma are (a) Once a question is concurrently decided, it cannot be
re-opened by individual jurists, (b) one Ijma may be re-opened by a subsequent Ijma; (c) when
the jurists of an age have expressed only two views on a particular question, the third view is
precluded. Ijma has been classified into three types:- a) Ijma of the companions of the Prophet;
b) Ijma of the jurists; and c) ijma of the people while the first type is universally accepted and is
incapable of being repealed, the other two types are somewhat disputed.

Participants in Ijma

The majority of sunni jurists hold that Muslim Majtahids alone are competent to participate in
Ijma. However, in certain fundamental matters, such as duties of saying 5 times prayers, fasting
during the month of Ramadan, etc. the law has been established by Ijma of people. Further, the
Hanafis accept the opinions of the jurists of any age; while the Hanbalis abide by the Ijma of the
companions of the Prophet alone. The Malikis repose their faith on the consensus of the scholars
of Medina. Imam Shafi, who was an intermediary between the independent legal investigation
and a tradition and a traditionalist, perfected the doctrine of Ijma. On the other hand, the Shias,
accept the Ijma emanating from the household of the prophet or unless the jurist consults in their
consensus by the infallible Shia Imam. Origin: The koran and the sunna did not contain all the
rules of law. With the expanding territories of Islam, situations arose, for which no direct
authority could be found either in the Koran or the sunna. In such a case, recourse had to be
taken to the opinions ``or joint deliberations of ‘Ahsab’ (companions of prophet) and ‘ tabians’
(successors of Ahsab’ ) in this way, doctrine of Ijam got developed. The Hanafi jurists
unequivocally assert that the law must change with the changing times, or, as Malik puts it, new
facts require new decisions. Defect & importance: The main defect in the doctrine of Ijma is the
omission to provide a definite and workable machinery for the selection of jurists, who are
qualified to take part in Ijma, and for ascertaining, collecting and preserving the results of their
deliberations in an authoritative form. The importance of Ijma as a source of Muslim law is
undoubtedly great it has made possible changes to suit the needs of changing times and usages,
and it has been influenced by the opinion of jurists in all cases not provided for in the Koran or
the traditions, or where such provisions were not explicit, Ijma was regarded as authoritative not
only for discerning the right at present and in the future, but also for establishing the past. It was
because of Ijma, that it could be determined as to what the Sunna of the Prophet had been and
indeed what was the right interpretation of the Koran. In the final analysis, both the Koran and
the sunna were authenticated by Ijma.

QIYAS

The word “Qiyas has come from a root which means measurement, accord, equality, etc. Qiyas
or analogy is defined as the process of deduction from first three sources of law, the koran, the
sunna and the Ijma by which the law of a text is applied to cases which, though not covered by
the language, are governed by the reason of the text Qiyas should be distinguished from Rai
(opinion). ‘Ria’ signifies individual opinion or reasoning i.e. sound and considered opinion.
“When it is directed toward achieving systematic consistency and guided by the parallel of an
existing institution or decision, it is called Qiyas. All the four schools of Sunni accept the
authority of Qiyas as source of law. However, it was one of the causes of conflict among the
Sunni schools, as all the schools do not agree as to the precise scope and importance of Qiyas for
example, the Malikis interpret it as “the accord of a known things with a known thing by reason
of the equality of a one with the other, in respect of effective cause of its law. “According to the
Hanafis, the Qiyas is an extension of law. With the conquest and the expansion of the Islamic
state, and with the advent of time, new cases came up which were not provided for in the koran,
Sunna or Ijma. The jurists found themselves compelled in seeking solutions, and to have
recourse to reason, logic and opinion. Analogy, thus became the fourth source of Islamic law. A
section of the Muslim jurists were opposed the use of Qiyas, quoted following koranic texts in
support of their assertion: “And we revealed the Book unto thee, as an exposition of all things”
Koran 16.89) “We have neglected nothing in the Book”. (Koran 6:38). The jurists who advocate
the exercise of Qioyas contend that the two texts cited above are valid and it is accepted every
Muslim should seek guidance in all matters from the Koran, but they argue that the law relating
to few questions alone are expressly laid down in Koran, and as regards the rest, it merely affords
indications from which inferences has to be drawn. In their support, they cite may Koranic texts
and traditions, a few of which are as follow: “As for similitude we cite them for mankind but
none will grasp their meaning save the wise”. (Koran 29:43) “Learn a lesson, O ye who have
vision to See” (Koran 29 43). Qiyas as a source of law The Qiyas as a source of law has been
given the last position. It is considered to be subsidiary and subordinate to the Koran, the Sunna
and the Ijma. The reason is that with respect to analogical deduction, one cannot be certain that
they are what the lawgiver (Allah) intended, as human reason is liable to error