5. Customs and usages having the force of law
6. Judicial decisions (fatawas)
8. Justice, equity and good conscience.
Each of these is discussed below in necessary details.
1. The Quran (Koran):
The Quran is considered by the Muslims as the basis of their law. Every word of the Quran is regarded as being the direct utterance of the Almighty, communicated in His actual words by the angel Gabriel to the Prophet. The Prophet recited (hence the name, Quran) the words as divinely inspired.
These sayings were not collected or written down by the Prophet himself, but by his companions immediately after his death. Authentic and well-accepted translations of the Koran have been made by Sole in English, by Suruf Ali in Urdu, and by Du Ryer and Savory in French.
The Muslims believe that the Koran is Al-furquan, i.e., one showing the truth as distinguished from falsehood, and right from wrong. The Koran runs into about 6,000 verses, but only 200 deals with legal principles, and of these, only about 80 verses deal with the law of personal status, like inheritance, marriage and divorce.
Most of the legal principles are to be found in that part of the Koran which was revealed to the Prophet at Medina. It is interesting to note that the portion revealed at Mecca is singularly free from legal matters, and contains mainly the philosophy of life and religion.
However, the Courts, while administering the law, are not to put their own construction, as against the interpretation of the ancient commentators of established authority. Thus, in a case where a particular passage of the Quran was interpreted in a particular manner both in the Hedaya (a work on the Sunni law) and in the Imamia (a work on the Shia law), the Privy Council held that it was not open to a Judge to construe it in a different manner. (Aga Mahomed Jaffar v. Koolsom Beebee, 1897 25 Cal. 9)
One important point is to be kept in mind when interpreting the various verses of the Koran. Some of the verses are deemed to be the abrogating (nasikh) verses, whilst others are the abrogated (mansukh) ones. As a general rule, the earlier verses are deemed to be repealed by the later ones.
Leading text-books on Islamic law deal exclusively with the question of how a rule of law is to be deduced when several Koranic verses deal with the same or similar topic, or when one verse affects another, either directly or indirectly.
2. The Sunnah (Sunna):
The second source of law, according to Islam is the ’sunnah’, i.e., the precept of the Prophet. The word Sunna means “the trodden path”; thus, it is some kind of practice or precedent of the Prophet.
Sunna is, however, to be distinguished from what Fyzee calls “hadith” (referred to as hadis (singular) and ahadis (plural) by Mulla). Hadith is the story of a particular saying or occurance; Sunnah is the rule of law deduced from the Prophet’s behaviour. These two sources, viz., the Quran and Sunnah, are direct and indirect revelations, and may be said to form fundamental roots of Islamic law.
These precepts, utterances and actions of the Prophet were not reduced to writing during his life-time; they were preserved by tradition and handed down from authorised persons.
One of the greatest differences between the Sunnis and the Shias is that the Shias do not give credence to a hadith, unless it emanates from the household of the Prophet, particularly from the household of Ali.
The Sunnis regard the following as the most widely recognised authentic treatises:
(c) Abu Da’ud;
(d) Tirmidhi, and
The Shias, on the other hand, rate the following as the most authentic:
(a) Al-Kafi; and
Ijmaa i.e., consensus of the founders of the law, or of the community as expressed by the most learned members, is another important source of Islamic law.
When a number of persons who are learned in the Muslim law and have attained the rank of jurists of some sort, agree on a particular legal question, their opinion is binding and has the force of law. The classical view is that while individual jurists are liable to err, the community as a whole cannot fall into error. In fact, there is a well- known tradition of the Prophet to the effect that “my people will not agree in error.”
Rules deduced on the basis of Ijmaa have varying degrees of binding authority in different schools. However, all schools are agreed that where there is consensus, there can be no disagreement thereafter. In other words, Ijmaa once established cannot be questioned.
Ijmaa must also be carefully distinguished from bidat, i.e., mere heresay or novelty, and from raj, i.e., free opinion.
The fourth important source of Muhammadan law are the Qiyas, i. e., a collection of rules or principles by the methods of analogy and interpretation from the first three sources.
All the three sources referred to above could not suffice the growing needs of a community which had their ideas expanded by the great territorial strides that Islam had made in the course of the century.
To cope with all the cases, they had to resort to pure reasoning in order to supplement the Quran, the Sunnah and the Ijmaa, for development of the law. This new source took the form of reasoning by analogy from the other sources. This is called Qiyas.
It is said that when Mouadh was appointed the Chief Justice of Yemen, the Prophet questioned him, and Mouadh replied as follows:
Prophet: On what shalt thou base thy decisions?
Mouadh: On the Koran.
Prophet: If the Koran does not give guidance?
Mouadh: Then upon the usage of the Prophet.
Prophet: But if that also fails?
Mouadh: Then I shall follow my own reason.
The Prophet, it is believed, fully approved of these replies, and praised God that His Servant was on the right path.
As regards the classical texts, Justice Chagla of the Bombay High Court has sounded a warning against following such texts slavishly. (A reference may be made to the observations of the Court in Asharafalli v. Mahomedalli, referred to under Rule III of “Interpretation of Muhammadan Law”, below.)
5. Customs and Usages Having the Force of Law:
Muhammadan law does recognise the force of custom and usages in establishing rules of law. The validity of customary law rests on principles similar to Ijmaa. As regards the customs prevalent in the time of the Prophet, his silence as to these customs had been regarded as recognition of these customs.
Whenever the questions of the applicability of custom arise, one has to consider two questions:
(i) Whether the custom is proved, which is a question of fact; and
(ii) Whether it is binding, which is a question of law?
Thus, in the case of Abdul Hussein v. Sona Dero, (1917) 45 I.A. 10, their Lordships of the Privy Council held that it is incumbent upon the plaintiff contending the existence of a custom, to allege and to specifically prove the custom, and that it is of the essence of special usages, modifying the ordinary law, that it should be ancient and invariable.
In India, in Punjab, and among certain communities such as the Khojas, Muslim law, on some points, was superseded or considerably modified by customs adopted from the Hindus and sanctioned by the Legislature or the Courts. But, in view of the Muslim Personal Law (Shariat) Application Act, 1937, it is no longer open to Courts in India to recognise and give effect to customs derogating from rules of Muslim law in matters relating to topics enumerated in that Act.
6. Judicial Decisions (Fatawas):
The decisions of the Indian Courts and the Privy Council have considerably influenced the tenets of Muhammadan Law.
Though not exactly a source of law, fatawas or opinions of judges (and of Muftis) in the light of facts of the case are important, as they have been instrumental in the development and enrichment of the principles of Muhammadan Law. The most famous collection of Fatawas in India is Fatawa-i-Alamgiri, which was compiled in Aurangzeb’s time.
Though Muhammadan law in India is not codified, yet, some aspects of Muhammadan law have been regulated by Acts of Legislature. The Shariat Act, 1937, the Dissolution of Muslim Marriage Act, 1939, the Mussalman Wakf Validating Acts, 1913, and 1930, are some instances of such legislataion.
8. Justice, Equity and Good Conscience:
Where there is a conflict of opinion, and there is no specific rule to guide the Court, the Court follows that opinion which is more in accordance with justice, equity and good conscience. (Aziz Bano v. Muhammad 1925 47 All. 823)
Where the law analogically deduced is inadaptable to the present needs of the society or where its rigid application would result in hardship to the public, rules of equity could be applied. Abu Hanifa. The great jurist, called this “Istihasan” (literally translated as “Juristic Preference)”.