The Primary Sources of Muslim Law

Sources of Muslim Law

Source of law means ‘the origin of law’ or ‘from where the law has been evolved’. There are two sources of Muslim law, which are known as primary and secondary sources.

The primary sources of the Muslim law are based on religious and spiritual values, thus it is of great value and importance for the Muslims. These sources were evolved in ancient times during the days of the Prophet Muhammad and are still followed in the modern era, which exhibits the respect and faith of the Muslims in these sources. Primary sources Holy Quran, Sunnah, Ijma and Qiyas.

The secondary sources of Muslim law are legislation and judicial pronouncements. The secondary source has contributed towards the development of Muslim law to a good extent. The legislations by the legislatures or the precedents by the Judiciary have from time to time, uplifted the interests of those sections of society, which were suppressed.

For example:

1. The Dissolution of Muslim Marriage Act, 1939[1] gave various grounds to a Muslim woman to obtain the decree of divorce against her husband.
2. The Muslim Women (Protection of Rights on Marriage) Act, 2019[2] has imposed a legal ban on triple talaq.

Though the legislations are a secondary source of Muslim law, but it has contributed a lot towards uplifting the interests of Muslim women, which were not vested with such a right by the primary sources of Muslim law.

Primary sources of Muslim Law

The four primary sources of the Muslim law according to the “Fiqh: classical theory” are enumerated hereunder:

1. Holy Quran:

1. The Holy Quran is the first primary source of the Muslim law. The word Quran is derived from the Arabic word ‘Qarra,’ which means‘to read’.
2. The Holy Quran is believed to be the direct and unaltered words of the God which is communicated to Prophet Muhammad through angel Gabriel in Mecca and Medina. It is the basis on which the very structure of Islam is based.It specifies the moral, philosophical, social, political and economic basis on which a society should be constructed.[3]
3. The importance of Quran is religious and spiritual and in Muslim beliefs it is the word of god. Therefore, versus of Quran which specifically deals with the legal questions are held to be of paramount authority. The verses of Quran are categorized into three fields: ‘science of speculative theology’, ‘ethical principles’ and ‘rules of human conduct’. The third category is directly concerned with Islamic legal matters which contain about five hundred verses or one-thirteenth of it.
4. The principles of the Holy Quran w.r.t. the marriage, divorce and succession etc. are being followed by the Muslims since ancient times and are also admired today.

2. Sunna:

1. Sunna is the second primary source of Muslim law. Sunna means the body of Islamic customs and practice based on Prophet Muhammad’s words and deeds. Thus the practice of the Prophet- his ‘model behavior’ is Sunna, which is a binding authority when the Quran couldn’t supply authority for a given legal question.[4]
2. The word Sunna was used in pre-Islamic times for an ancient and continuous usage well established in the community (sunnat al-umma). Later the term Sunna was applied to the practice of Prophet (sunnat al-Nabi).
3. The word Sunna is different from Hadith, as the Hadith is the story of a particular occurrence, while Sunna is the rule of law deduced from it.

3. Ijma:

1. The third primary source of the Muslim law is Ijma, which means the ‘consensus of opinion among the learned of the community.’Thus, it refers to the concurrent opinions of scholars on legal questions, which acquires a form of law.[5]
2. Ijma is an important source of law because it deals with the solutions of the emerging legal problems in the society, which doesn’t have any solution specified in the Quran or Sunna. Thus, the solution to such an emerging problem in the society is derived from the consensus of opinions or unanimous decision of the Muslim jurists.
3. Ijma leads to the development of the Muslim law with respect to the changes in society, needs of society and emerging problems in the society, which doesn’t have any rule of law to deal with it. Hence, it is a pivotal and most fruitful source of law.

4. Qiyas:

1. Qiyas is the fourth and last primary source of the Muslim law. Qiyas is the process of analogical deduction in which the teachings of the hadith are compared and contrasted with those of the Quran, in order to apply a known injunction to a new circumstance and create a new injunction.[6]
2. It is a method of comparing the present problem of society with a similar problem for which the solution was provided in the Quran, Sunna or Ijma. Thus, the solution of the present problem is obtained by resorting to the comparative analysis of the present problem with a similar problem, which has a specified solution for it.

Position of Primary sources of the Muslim Law

The Indian judiciary adheres to the primary sources of the Muslim law and doesn’t interfere in their personal laws which are derived from the primary sources. The personal laws of Muslims are respected and followed by the judicial system. For example marriage, divorce and succession are governed by the Quranic injunctions, which are implemented by the judiciary.

But, the intervention of judiciary in personal laws becomes pivotal in certain circumstances especially, when there is a need of modification to meet the interests of certain sections of the society or when there is a violation of the right conferred by the Constitution of any section of the society, because of these personal laws. Even, if a law which is evolved from the primary sources of the Muslim law contravenes the provisions of the Constitution, it will be set aside by the Judiciary.

1. In the case of, Shah Bano v. Union of India[7]

“The Hon’ble Supreme Court has held that a divorced Muslim woman is entitled to maintenance under the provisions of Section 125 of CrPC, 1973.”

The Hon’ble Supreme Court has invoked Section 125 of Code of Criminal Procedure, which applies to everyone regardless of caste, creed, or religion. Thus, the judiciary has contributed in the development of Muslim law by modifying the provisions for the maintenance of Muslim women.

2. In the case of, Shayara Bano v. Union of India[8]

“The Hon’ble Supreme Court has declared the practice of triple talaq (talaq e biddat) which allowed certain Muslim men to divorce their wives instantaneously and irrevocably, violative of Article 14 of the Constitution and thus, declared it as unconstitutional.”

The judiciary has intervened in the personal laws of the Muslim to protect the Fundamental right of Muslim women, which is being violated because of such a practice of triple talaq.

Hence, the judiciary by interfering in the personal laws of the Muslims which are derived from the primary sources and interpreting it in a just and equitable manner has contributed a lot in the development of Muslim law in India.

[1]The Dissolution of Muslim Marriage Act, 1939 (Act 8 of 1939), s. 2.

[2]The Muslim Women (Protection of Rights on Marriage) Act, 2019 (Act 20 of 2019), s. 3.

[3]Asaf A.A. Fyzee, Outlines of Muhammadan Law12 (Oxford University Press, New Delhi, 5thedn., 2008).

[4]Ibid.

[5]Asaf A.A. Fyzee, Outlines of Muhammadan Law13 (Oxford University Press, New Delhi, 5thedn., 2008).

[6]Asaf A.A. Fyzee, Outlines of Muhammadan Law 13-14 (Oxford University Press, New Delhi, 5thedn., 2008).

[7]AIR 1985 SC 945.

[8]2017 (9) SCC 1.

This article is authored Vipul Pathak, Second-Year, B.A. LL.B student at CLS-GIBS 

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