Sources of muslim law

Assignment: Family Law-I

“SOURCES OF MUSLIM LAW”

By :Animesh Kumar i.B.A.LL.B. (H), III Semester Enroll. No. A8108309035

Sources of Muslim Law

Assignment: Family Law-I

Acknowledgment This assignment is intended to cover the Chapter- Sources of Muslim Law. Basic and pre-requisite information have been included. I acknowledge the inspiration and blessing of my respected faculty Prof. K. K. Lal. He made my all doubt crystal clear. I am full of gratitude to my room partner cum friend Abhijeet Srivastava for the patience shown and encouragement given to complete this assignment. My heartful thanks are due to my friends Harsha, Prashant Kumar Singh, Rodraksh Raghuvansi and Vipul Mishra for providing relevant resources. In the last but not the least, my sense of gratitude is due to AMITY LAW SCHOOL, LUCKNOW. Every effort has been made to avoid errors and mistakes; however their presence cannot be ruled out.

Animesh Kumar

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Table of Content 1. Meaning of shariah.................................................................................1 2. Primary sources of Islamic law...............................................................1 3. Dependent sources.................................................................................4 4. Islamic law: A divine................................................................................7 5. Bibliography............................................................................................10

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SOURCES OF MUSLIM LAW THE MEANING OF SHARIAH: In literal meaning Shariah signifies:  Wide, Lightened and Straight Path.  In technical term it embodies the laws and orders ordained by Allah Almighty, through hisProphets. All Prophets came with one Deen but different Shariahs. Islamic shariah is the lastand for all times to come.  And unto thee have We revealed the scripture with the truth confirming whatever scripture was before it and a watcher over it so judge between them by that which Allah hath revealed and follow not their desire away from the truth which hath come unto thee.1 THE FUNCTION OF SHARIAH: Shariah is: 1. To promote ma-arofat; Wajbat, Matlobat, Mubah 2. To prohibit from Munkrat ; Haram, Makroh SOURCES OF ISLAMIC SHARIAH: Difference between Shariah and Fiqh; Shariah is a wider term whereas Fiqh is a narrow and definite term. Unlike shariah Fiqh dealswith Islamic practices and regulates those practices where as Shariah, a more generic term deals with both Islamic faith and practices. When we talk of Sources of Islamic Shariah we are inreality referring to sources of Islamic Fiqh. These sources may be divided into two categories. 1. Primary sources of Islamic law  Quran  Sunnah 2. Dependent sources of Islamic Law  Ijma  Qyas  Ijtahad  Istehsan  Customs PRIMARY SOURCES OF ISLAMIC LAW  QURAN: Meaning In literal meaning it means the book frequently read, another meaning of Quran is Mankind as the topic of the book is human beings and humanity.  In term it means The Holly Book reveled by Allah to Our Holly Prophet (peace be upon him) which is the main and primary source of Islamic law. 1

(Almaida 48)

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Introduction: It is the book lying down the basic framework and out lines related to all kind of laws. The regulations and legal orders and Laws are mainly referred to in Sura Al-Baqra, Alnisa, AleImran, Al-Maida, Al-Talaq and Bani Israil but it is not restricted to any specific part or Surahh.  We revealed unto the scripture with the truth and thou mayst judge between mankind by that which Allah showeth thee. And be not thou a pleader for the treacherous2.  Who so judgeth not by that which Allah hath revealed such are disbelievers.3  Verily we have brought them a Book which We expound with knowledge a guidance and a mercy for a people who believe.4 The kinds of Verses:  Explicit; apparent  Implicit; capable of interpretation Important Characteristics of Quran as main source of law:  Quran is the Constitution: It has same supremacy over general laws and other sources which a constitution has over general laws.  Flexibility Unalterable Nature of Quran.  This is the Book whereof there is no doubt, a guidance unto those who ward off (evil).5  arrangement of Quran: Moulana Behr-a-alum says “in Sharha Muslim-al-sabut. The arrangement of Quran which we see today is proved by Holy Prophet Muhammad, and All Ummah has agreed upon its originality.”  Sir William Myor says “the life of Muhammad (PBUH) Quran had been put on paper and the Followers of the Holy prophet contained it with them.”  SUNNAH: Meaning literal; way path, Road  Term; practices and words of the Holly Prophet (PBUH) Difference between Hadith and Sunnah Hadith means „which is narrated‟ where as sunnah includes both words and practices.Thus Sunnah can be put in three types;  1.The sayings or words of the Prophet.  2.The deeds and practices  3.The conduct of the Holly prophet ;tacit or implied consent on a matter. 2

(An-nisa 105) (Almaida 44) 4 (Ala-araf 52) 5 (Albaqra 2) 3

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Binding nature of Sunnah: We sent no messenger save that He should be obeyed by Allah leave and if when they had wronged themselves, they hath but come unto thee and asked for forgiveness of Allah and asked forgiveness of the messenger, they would have found Allah forgiving, merciful.6 Explanation of Quran : 1. By giving it specific or particular meaning 2. By supplementing legal provisions of Holly Quran. Allah verily hath shown grace to the believers by sending unto them a messenger of there ownwho recites unto them his revelations, and causes them to purify and teaches them the Bookand wisdom, although before they were in flagrant error.7  Enforcement of Quran by Holy Prophet  Authority derived from Quran  Avoidance of conflicts: With clear proves and writings; and we have revealed unto thee the remembrance that thoumayst explain to mankind that which hath been revealed for them, and that haply they mayreflect.8  Detailed nature of Sunnah.  Providing Certain exceptions to general rules Compilation of Hadith:  Era of Holly Prophet and Umer: efforts on individual level.  Bni Abbas period: Hadith developed on systematic basis  Compilations of Masnads: collected according to narration  Editions: in which Hadith collected according to Subject matter. Authenticated books of Hadith  Sahi bukhari by Imam Ismail Bukhari which contains 10.000 Hadith  Sahih Muslim by Muslim Abu Hasan Neshapuri which contains 7,000 Hadith  Sunan e Ibne Majah by Ibne Maja  Sunan e Abu Dawood by Abu dawood  Jama Tirmizi by Tirmizi and  Sunane Nis-ai by Nis-ai Difference between Quran and Sunnah Classification of Traditions  With regard to legal force Obligatory Persuasive

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(Annisa 64) (Al-Imran 164 ) 8 (Al-Nehl 44) 7

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  

With regard to number of narrators Continuous or matwatar Famous or Mashhoor Isolated or Khabr-e-Wahid According to form Verbatim Non-verbatim As to mode of Narration Connected or Hadith-e-Mutasil Disconnected or Hadith-eghair Mutasil.

Rules for Authenticity of Hadith:  Hadith must be continuous.  It must be in conformity with Quran and Practices of the Companions.  Narration of jurists is preferred over non jurists.  Narration of well known and honored people is preferred over unknown.  Hadith must be narrated by a Muslim.  Narrator must be major , sane and with good memory.  Moral character of narrator is relevant.  Narration of man is preferred over women, of freeman over slave. THE DEPENDENTSOURCES:  IJMA: Meaning In the legal sense it means consensus of the Ummah on a specific legal point in a particular time. Authority derived from Quran:  And He who follows other than the way of the believers, we wilt turn our back on him and he hath turned his back: and we will make him reach hell, and a bad journey shalt it be.  they consult their affairs by mutual consultation.  My followers shall not agree upon what is wrong Reasons of accepting Ijma as a Sources  Ijma does not have basis independent of Islamic social system founded by The Holy Prophet. In the opinion of Fakhur-ul-Islam It is unimaginable that the Muslim scholars gat united over a thing without some legal basis.  it has sanction for delegated legislation by the Muslim society.  Guiding principles are provided and the rules must remain within otherwise the rule will become ultravires.  Need of a rule making power to meet practical problems for implementation of Islamic Injunctions.  Ijma performs two functions; the discovering of Law and the implementation of law and in the words of Iqbal .The former function relates to the question of fact and the latter relates to the question of law. Who can participate in Ijma  Scholar of Quran and Sunnah  Scholar of Law and modern Knowledge Sources of Muslim Law

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    

Knows Qyas Expert in Arabic Analytical skills Excellent moral character and Faith of Ummah Impartial

Criticism by Orientalists Ijma has introduces into Islamic society Innovations (bidaat) and has made drastic changes. There can be no Ijma against Quran and sunnah and secondly Ijma is consensus of Jurists and not the masses.    

QYAS (REASONING BY ANALOGY): MeaningLiterally it means, measuring or judging things on the basis of equality. In the Legal sense it has been defined by Amidi ; It means that the parent event or thing and the others have the common characteristics which became the effective cause or basis for the parent event or thing to have a particular fate.

As source of Law: As a source of law Qyas is the technical rule for legal exactitude of individual reasoning. The law is not discovered but extended and widened by way of analogy. Term of Qyas is not same as Interpretation of statues. Is qyas permissible? Those who favors Qyas depend upon these arguments:  Quran being the constitution, the detailed law is to be deduced on its fundamental principles.  It is provided in Hadith that The Holly Prophet (PBUH) appreciated use of ones own judgment where Quran and Hadith are silent on a matter. Arguments Against Qyas:  Zaheris and Shias maintain that use of analogy amounts to making a new law, which is not permissible in Islam.  The Quranic verses such a “We (Allah) have sent down the book as authority for you and there is not fresh or dry but is to be found in the reveal book.  Tradition; There are the sources of confusion to followers who will exercise their own thinking. Elements of Qyas:  Parent thing (Al-asal)  New thing or situation (Fraa)  Legal effect of parent thing (Hukm-ul-asal) Sources of Muslim Law

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 Effective cause or basis (Al-wasf-ul jam Essential condition of analogy:  Only a jurists of a Mujtahid is competent to make Qyas and Qyas of every text of Quran and Hadith is not permissible.  The law in the text must not be intended to be restricted to a particular fact or event.  According to Hanfis and Malikis analogical deduction can be based on existing analogical deduction but some Shafis and Hambelies recognize such a deduction.  Analogy must be applied to the effective cause and not the language of the text.  Analogy must be based upon a text, which is comprehendible, by human mind.  Analogy must not be opposed to Quran or Sunnah.  The deduction must not lead to a change in the law of text.  IJTIHAD : Meaning:  Literal means Striving to the utmost.  In legal terminology it means striving to discover a law from the text through all possible means of interpretation. Imam Shafai in chapter 12th of his Al-Risala has said on all matters which touch the life of a Muslim there is either a binding decision or an indication as to the right answer. There is a decision, it should be followed; if there is no indication as to the right answer it should be sought by Ijtihad, and ijtihad is Qyas. According to Shafais Qyas include Istehsan of Hanfies and Istislah of Malikies. Conditions for Ijtihad:  There is no Ijtihad where the rule in the text is explicit.  When the set of facts is not covered by legal implication the jurist undertakes analogy. Refutation of the Orientalists: Argument: Jospeh Schacht in Origin of Muhammad and Jurisprudence and Margoliouth in Earlydevelopment of Muhammadism says “Qyas is an incorporation of Jewish methods of legal exegesis.” Reply: Quran provides -What do these who seek after evil ways, think that we should hold them equal with those to believe and do righteous deeds that equal will be their life and their deaths? Argument: Ijtihad is the activity of jurist outside the text . Reply: The jurist deduce law from Quran and Sunnah and Qyas against Quran is invalid. He who did something which is not based on out authority is condemned.9 Qualification of a Mujtahid: 9

(Sahih Bukhari)

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      

Knowledge of Quran and other matters connected to it. Knowledge and Hadith and allied matters. Justice and piety should have complete understanding of modern development. Full grasp of Arabic language. He should be a believer and a righteous person. He should have the knowledge of rules of shariah and its intricacies. He should be a Sahib-ur-ray, having courage of conviction. Legal authority of Ijtehad:  Ijtehad is not in itself a source of Islamic law, but a process to derive law from the primarysources and interpret it. It is not binding .It is never free from a chance of error and those who have a different opinion are not declared nonbelievers.  Need of Ijtihad and Qyas:  Qyas is allowed and accepted to provide for speedily changing society. Margaret Mead writes in her Cultural patterns and technical change.  Technical change is also as old as the civilization and since time immemorial the ways of life ofthe whole have been transformed by the introduction of new tools and new technical producers. Population balance and the whole religious system has been upset by some changes in technology; just as the inventions which underlie technological changes have themselves arisen from changing conception of nature and of men. Nor is the attempt to control technological change a new.

ISLAMIC LAW: A DIVINE GIFT LAW can simply be defined as a set of rules governing human conduct. The western concept of law presupposes a state. According to it, the state makes or authorizes to make rules that constitute law, and these rules are enforced on the basis of sanctions. The purpose that the law is made to serve may vary from welfare of the people to the interests of a regime. The origin, nature, and scope of the Islamic legal system is different from that of the western legal systems. Islamic law, in plain words, is the body of rules of conduct revealed by God to his Prophet (PBUH) whereby the people are directed to lead their lives. Compared to the western concept of law, the features of Islamic law, in brief, are:  It has not been decreed by any earthly ruler, but revealed by God.  It originates from Divine Revelation, not custom or tradition.  It remains valid, whether a state recognizes it or not.  Where a state does not recognize it, Islam ensures its observance by the Muslims living in its territory through cultivation of religious consciousness in the human soul and awakening of awareness through moral education. Thus, Islamic law applies to the conscience of a Muslim even if he is living in a non-Muslim state.  It addresses every aspect of human life, not just the legal system.

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    

Its purpose is to ensure the welfare of man, individually and collectively. It does not aim at the glorification of the lawgiver, as God is above all wants and weaknesses. The means by which compliance with Islamic law is secured are of a wider character than the sanctions in the western legal systems. In a Muslim state, the community through a chosen representative or a group of representatives administers it. When non-Muslims are living in a Muslim state, only those parts of Islamic law apply to them that are not specifically identified with the tenets of Islam. Regarding its enforceability, Islamic law can be divided into the following three classes: a. Those laws that regulate men relations to and dealings among one another, their enforcement is incumbent upon the community; b. Those laws that only address the spiritual aspect of an individual‟s life, are enforced, by God, by means of spiritual rewards and punishments; and c. Those laws that not only concern the spiritual aspect of individual life but also affect Muslim society, their enforcement is left to the discretion of the state.

It must also be noted that though the western legal systems regulate the economic, social, and political affairs of a nation, they do not cover rules of moral behaviour. Such rules only exist in the form of customs and social manners, and are enforced by the sheer force of public opinion. Consequently, whenever the public accepts as moral or even starts ignoring certain immoral actions, the entire concept of morality, due to this moral laxity, transforms. Islamic law, on the other hand, reaches much deeper into thought, conduct, and life. The range of scope and purpose of Islamic law and western legal systems differ due to the different characters and abilities of their creators and proponents. It is a fact that in order to have an absolute comprehension of what the law should be, one must not only have before him the entirety of human life but also completely understand the human nature. No jurist can ever have such a complete picture of human life and nature. Only God has the ability to accurately know which rules are suitable for all human beings. Thus, the law prescribed for man by Him, through Divine Revelation, is the most comprehensive and expedient one. No wonder, most of the recent western concepts regarding human rights, rights of animals, international affairs, family matters, judicial independence and impartiality, legal representation, juristic personalities, charitable trusts, non-retroactivity, etc, were never alien to Islam. As it is the Revelation through which we become aware of the will of God, so it is the source of the laws of Islam. Revelation consists of: 1. Communications made by Gabriel, under the directions of God, to the Prophet (PBUH) either in the very words of God, or by hints; 2. Such knowledge as occurred in the mind of the Prophet through inspiration from God; and 3.Opinion of the Prophet, embodied in the form of ratiocination, delivered from time to time on issues that happened to be raised before him. In answer to the question as to how opinion of the Prophet can form part of Divine Revelation, God says: “Your companion errs not, nor does he deviate. Nor does he speak out

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of desire. It is naught but revelation that is revealed One Mighty in Power has taught him, the Lord of Strength. So he attained perfection.”10 Revelation is available to us in the form of the Quran and the Sunnah of the Prophet. The Quran comprises only those Revelations that are made in the very words of God, while the rest form the corpus of the Sunnah. Here it must be mentioned that it is wrong to claim Ijma and Qiyas as sources of Islamic law. Both are mere tools provided in Islamic jurisprudence for further extension of the law. They only extend the laws given in the Quran and the Sunnah to matters not expressly covered by them. The methods of expansion of law should not be confused with sources of law.

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(Al-Quran, 53: 2-6)

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Bibliography  Mulla, D.F., Principles of Hindu Law  Paras Diwan, Modern Hindu Law  Mulla, D.F., Principal of Mohammadan Law  Fyzee, A.A.A., Outlines of Mohammadan Law  Mahmood, T., Muslim Law of India  Paras Diwan, Law of Intestate and Testamentary Succession (1998), Universal Publication.  www.google.com  www.lawyersclubindia.com  www.scribd.com

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