State briefly the ancient and modern sources of Muslim Law.

By | April 26, 2022
Muslim Law Mains Question Answer

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Question: State briefly the ancient and modern sources of Muslim Law.

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Answer

Apart from Custom, We can divide sources of Muslim law into two parts:-

  1. Ancient sources
  2. Modern sources

I. Ancient Sources of Muslim Law

The ancient sources of Muslim law are:-

  • Quran
  • Sunna
  • Ijma
  • Qiyas

Quran

The Quran is like a Constitution for the Muslims and all the preaching of the Prophet was compiled in the Holy Quran after the demise of the Prophet. The Quran is the final authority on any issue related to Muslim personal law. In a strict sense, the Quran cannot be called a legal code and Muslim jurists agree that it contains verses explaining the way of living and the morals of life and it is not a legal code backed by sanctions.

Sunna

Sunnah is another primary source of Muslim law but comes after the Quran. Sunnah is what was said by Prophet and Sunhat is his practice and action. Whatever the Prophet said or did without reference to God is treated as his tradition and is the second source of Muslim law.

Ijma

The term ijma means a consensus, i.e. the agreement between all on a particular point of fact or law. When all the judges in the Supreme Court unanimously agree to a point and pronounce judgment on that point, it becomes a precedent and a binding law. Similarly,  Ijma is a concept of law made by the consensus of all Islamic jurists or other persons of knowledge and skill.

Qiyas

As Islam spread in different parts of the world, they rendezvous with several other communities such as Byzantines and Persians, and with the passage of time new difficulties arose. The Holy Quran was not capable of dealing with new emerging difficulties arising from contact with the outside world.

II. Modern Sources of Muslim Law

The modern sources of Muslim law are:

  • Equity, Justice, and Good Conscience
  • Precedent
  • Legislation

Equity, Justice, and Good Conscience

The doctrine of equity, justice & good conscience is regarded as one of the modern sources of Muslim law. Abu Hanifa, the founder of the Hanafi sect of Sunni, expounded on the principle that the rule of law based on analogy could be set aside at the option of the judge on a liberal construction or juristic preference to meet the requirements of a particular case. These principles of Muslim law are known as Istihsan or juristic equity. Istihsan literally means approbation and may be translated as liberal construction or juristic preference.

This term was used by great jurist Abu Hanifa to express the liberty that he assumed of laying down the law, which in his discretion, required the special circumstances, rather than the law that indicated the analogy. Several areas of Muslims were modified so as to meet the changing conditions in India.

Precedent

Our Indian judiciary in several instances interpreted Muslim law in several cases. All these interpretations relied upon primary sources. Legislation, the opinion of jurists, and courts have settled many important legal anomalies using judicial interpretations.

Legislation

Muslim law in India is not codified, but the parliament has made some laws to regulate Islamic practices. For example The Muslim personal law (Shariat) Application Act, 1939. This Act deals with marriage, succession, inheritance, and charities among Muslims.


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