Sources of Muslim Law Explained | Primary & Secondary Source Explained

Origin and Development of Muslim Personal Law in India

Before the advent of British rule, the Islamic laws were ap-plied as (lex loci) law of the land." The Sultans of Delhi were strict adherents to the Islamic Law (Shariah). The reign of Il tumish was noted for jurists well versed in law and practice of Sharia. It was the 'Hedaya' of central Asian lawyer, Burhan-duddin al-Marghianani, which was the standard legal text book in Muslim India under the Delhi Sultans. This great work remained the basis of Muslim Law for centuries and finally translated in English by the officials of the East Indian Company. The criminal justice system was also governed by Shariah. The Ulemas had considerable influence on the legal decisions. The position of Islamic Law remained unchanged during the Mughal period with the sole exception of Akbar's reign when he tried to interpret Muslim law according to his own notions. An effort to apply the whole of Islamic Law was made under Aurangzeb's rule. He was considered to be strict adherents of Shairah." On his insistence a compilation of law 'Fatwa-e-Alamgiri' was compiled by around 500 experts in Islamic Jurisprudence. This compilation was based on Sunni Hanafi Jurisprudence and served as the basis of law. It consists of legal code on personal, family, slaves, war, property, inter-religious relations, transactions, taxation, economic and other law for a range of possible situations and their juristic rulings by the Hanafi Jurists." Hanafi law was, in the Mughal times, the law of the land. "After the initiation of British domination and political power in India the Islamic Law, in its limited sense, together with the associated Kiza (judicial) system was kept intact. Later, however, even these limited matters were transferred to the jurisdictions of the ordinary courts, but the Shariat Law was allowed to continue to govern the matters relating to the Muslims." In civil laws, both Hindu and Muslim laws were applied, but in criminal law only Muslim Law was applied. The Regulation 11of 1772 by section 27 enacted that "in all suits regarding inheritance, succession, marriage and caste and other religious usages or institutions, the laws of the Quran with respect of Mohammdan and those of the Shastras with respect to Gentoos (Hindus) shall be in-variably adhered to." This was according to the judicial plan of 1772 of Warren Hastings. Gradually these laws were replaced by statues borrowed from English Law and were left to be ap-plied only in 'Personal matters. The Muslim Law, though successively replaced, remained the basis of criminal law applicable to all inhabitants in Bengal and other Muslim parts of British India until 1862. The Islamic criminal law, although successively modified, remained in force somewhat longer; and not till the year 1862 when the Indian Penal Code and the Code of Criminal Procedure came into force did it entirely dis-appear. As regards evidence, the Islamic Law was not entirely abolished till the passing of the Evidence Act, in 1872.26 The introduction of modern nation state in British India established the monopoly of the state on legislation, displacing the traditional status of Muslim Jurists as the sole legal authority in Muslim society. Scholars describe this change in the nature of Islamic law during the colonial period as the transformation of Sharia from Jurists' law to state law."

In the early 20th century, the British India yielded to the demands for the representation of local Indians in the Legislative institutions and introduced an electoral system in India. The Indian Councils Act 1909 envisaged a separate electorate system. Under this system Muslims voted for Muslim candidates. In this way separate identity of Muslims became politically significant and distinct from other religious communities of India. This separate identity, however, was to be defined in legal terminology. A Muslim from a legal perspective was the one who followed Islam and Islamic Law. However, in many parts of India, Muslims followed customary law which was prioritized over Muhammadan Law (later called Muslim Personal law). For instance, under the Punjab Laws Act 1872, all family law matters were to be decided according to custom or Muhammadan Law modified by custom. Generally Punjabi Muslims did not strictly follow the Islamic Inheritance law, especially in rural area; female relatives did not get their pre-scribed share in Inheritance in agricultural land, and wives were given only life interests in land in order to keep the land within the ownership of a particular family or clan. Moreover, there were some Muslim communities such as Khojas and Memons, who followed the Hindu Law of inheritance as a customary practice. In this way, personal law and customary law existed side by side, however, legally, the latter had preferred over the former. The introduction of the separate electoral system for Muslims and Hindus, however, required a clear dis-tinction on the basis of religious identity. For Muslims this meant the greater adherence to their personal law. The enactment of the North West Frontier Province Muslim Personal Law (Shariat) Application Act 1935 at the provincial level and the Muslim Personal Law (Shariat) Application Act 1937 at the federal level should be seen in this context,

The enactment of Shariat Act, 1937 was the most significant legislation in the closing years of the British period in India. With the enactment of Shariat Act, 1937 the Muslim laws' of marriage, divorce, dower, legitimacy, guardianship, gifts, wakfs, wills and inheritance were applied to Muslims every-where in India. More important protection of women's right to property was guaranteed. Similarly Dissolution of Muslim marriages Act, 1939 was passed to extend women's right to divorce. Interestingly contrary to popular belief, ulama played a key role in the promulgation of these Acts to promote the rights of Muslim women in British India.

Sources of Muslim Law

The "sources of Muslim law" mean the origins or foundations from which Islamic laws have been developed. These are the rules, principles, and guidelines that Muslims follow in their daily life, religious duties, family matters (like marriage, divorce, inheritance),and social behaviour.

In simple words: 

Sources of Muslim Law are the main references used to understand what is right or wrong in Islam, what is allowed or forbidden, and how to live according to Islamic teachings. Just like every country has its constitution and laws, in Islam, these sources are the basis for forming and understanding the Sharia (Islamic law).

The sources of Islamic law may be categorized as under 

primary source 

secondary source

Primary Sources (Revealed or Core Foundations) 

Quran – The holy book; the ultimate authority. 

Hadith/Sunnah – Teachings and practices of Prophet Muhammad (PBUH). 

Ijma – Consensus of scholars. 

Secondary Sources (Supportive/Modern Interpretations) 

Qiyas – Applying known rules to new issues by analogy. 

Custom (Urf) – Local traditions accepted in Islam. 

Judicial Decisions – Case laws by courts or Islamic judges. 

Legislation – Modern state laws (e.g., Muslim Personal Law Act). 

Other Tools – Istihsan (juristic preference), Istislah (public interest). 

sources of Muslim law are based on Revelation (divine origin) and Non Revelation (human reasoning or interpretation).

Revealed sources are those sources of Muslim law which are based on divine revelation, either directly revealed by Allah (like the Quran) or communicated through the actions and sayings of the Prophet Muhammad (Hadith). These are the most authoritative and unchangeable sources in Islam. 

Non-Revealed sources are those sources of Muslim law which are not directly based on divine revelation, but are derived by human reasoning, scholarly consensus, and practical application of Islamic principles to new or evolving situations.

QURAN

The Quran is the first primary and revealed source of Islamic law, descended by a process of revelation upon Prophet Muhammad (PBUH) in arabic language for the guidance of human society

It is the infrastructure of Islamic legal system, and contains the basic principles on which the edifice of Islam is built

The word Quran is derived from Arabic word Qara i.e to read or to recite. The first revelation come to Prophet Muhammad (saw) at the age of forty in the cave of Hira in Makkah and this process continued for next twenty three years almost

It is the only book that remains unchanged and stands in its original form. It cannot be altered or modified

Muslims believe that Quran as the literal word of God mediated through the angel gabriel

The compilation of the Quran in the form of book was first undertaken by the order of Hazrat Abu Bakar as a matter of an urgent. 

This task was given to a committee headed by the Zaid ibn Thabit. He had the distinction of scribing the verses during the lifetime of Prophet Muhammad.

The arrangement of ayats in the Quran is not in the order of revelation in which they were revealed, but is believed to be in accordance with a plan sanctioned by the Prophet Muhammad himself

The Quran was structured in Arabic and it consists of 114 chapters, which are known as surah contains 6666 verses which are called as ayats and the total no. of 77,934 words

Out of these verses 200 deals with legal principles like marriage, maintenance, transfer of property, inheritance etc

The Quran was disclosed over two periods 

Makka (pre-migration) 

Madina (post-migration) 

The pre-migration largely contains lessons on belief(iman), righteousness, character, morality, ethics, values, patience, charity and purpose of life. 

The post-migration portion largely contains commands, rules, legal principles on purification, prayer, fasting, zakat, pilgrimage, inheritance, contract, adultery, theft, homicide, rules of war, divorce, etc....

Hadith and sunnah

Hadith means the recorded sayings, actions, approvals, or disapprovals of Prophet Muhammad (PBUH).

Sunnah refers to the way of life or practices of Prophet Muhammad(PBUH), including his habits, behaviour, lifestyle, and way of doing things. 

The principles of the law contained in the Quran were explained and amplified in the hadith and sunnah, which constitutes the 2nd basic source of Islamic law.

The pronouncement made by the Prophet (PBUH)n on all occasions are known as ahadith and are regarded as of sacred authority.

His dicta in all matters of law and religion were inspired and suggested by Allah, though expressed in his own words, while the Quranic text were God’s both in language and thought.

Types of sunnah

Sunnah Qaul (Sayings of the Prophet) 

This refers to the spoken words or sayings of the Prophet Muhammad(PBUH). Whatever the Prophet said to guide people in matters of religion, ethics, or daily life falls under this category. For example, when the Prophet said, “Actions are judged by intentions”, it is considered Sunnah Qaul. These sayings are very important because they explain many teachings of the Quran. 

Sunnah Fail (Actions of the Prophet) 

This refers to the actions or deeds of the Prophet. It includes how he performed prayers (Salah), fasting, Hajj, how he dealt with people, and how he lived his daily life. For example, the way the Prophet performed Wudu(ablution) is Sunnah Fail. Muslims try to follow these actions in their own lives.

Sunnah Taqrir (Approvals of the Prophet) 

This type of Sunnah includes situations where someone did something in front of the Prophet, and he did not object or disapprove of it. His silence or approval shows that the act was allowed or acceptable in Islam. For example, if a companion did something and the Prophet remained silent, that silent approval is called Sunnah Taqrir.

Ijma

Ijma is defined as agreement of the jurists among the followers of the Prophet in a particular age on a question of law

Ijma is derived from the word Jama which means to gather. 

In law it means unanimity or consensus of opinion on a certain solution. in other words ijma means to agree on one solution. 

The authority of ijma as a source of islamic law is also founded on Quran and Hadith. The Quran repeatedly calls the muslims an ummah(community) 

Ijma is the third source of Islamic law but it is non revealed source rather human expression and human exertion closely shaded and directed under first two sources which are primary in nature

The ijma is particularly associated with the consensus of the companions of the Prophet and the successors of the companions of the Prophet on any issue which they had faced. 

During the lifetime of Prophet any question or issue was directly responding or solved by the Prophet himself. 

Conditions for valid Ijma

It must not be against the basic texts of Quran and Sunnah. 

The Ijma of the companions con not be reopened again. Their Ijma is real ,irrevocable and binding source on Muslim Ummah 

The jurists of a particular age should be unanimous on the point arrived at, but not in contradiction with the Ijma of the companions

 Hazrat Umer during his tenure as caliph had formed a special consultative body of eminent jurists and temporal matters.

Example; Punishment of eight lashes for drinking wine was the result of ijma in the period of Hazrat Umar.

One of the best examples of Ijma (consensus) is the compilation of the Qur’an after the death of Prophet Muhammad (PBUH). During his lifetime, the Qur’an was not collected in one book, but written on different materials. After the Battle of Yamama, many companions who had memorized the Qur’an were martyred. Umar (RA) suggested to Caliph Abu Bakr (RA) that the Qur’an should be collected in one book to prevent any loss. Abu Bakr agreed and gave the task to Zayd ibn Thabit. After collecting and verifying the verses, all the companions agreed on the final compiled Qur’an. This agreement of the Sahaba is called Ijma, and it helped in preserving the Qur’an for all future generations.

Secondary source

Qiyas

It is defined as a method of islamic jurisprudence that involves analogical reasoning to derive legal ruling for situations not explicitly covered by Quran or Hadith. 

In Qiyas rules are deduced by the exercise of reason. The root meaning of word Qiyas is ‘measuring’ ‘Accord’ Equality. 

Qiyas is a process of deducing legal judgments for new issues or situations by drawing an analogy with established precedents.

Qiyas involves four main components. 

Asl(original case): The original case with a clear ruling from the Quran or Hadith 

Far(new case): The new case for which a ruling is sought. 

Illah (effective cause): The common attributes or reason that links the original case and the new case.

Hukum (rulling): The legal ruling derived for the new case based on its similarity to the original case

Example: Wine is prohibited in Islam because it causes intoxication. By analogy (Qiyas), drugs like heroin are also prohibited because they also cause intoxication.

process of Qiyas 

1.first find a case with clear ruling in the Quran, Hadith or Ijma. 

2. identify the illah (effective clause) in the original case. This involves the understanding the reason behind the ruling. 

3. Identify the new issue that requires a ruling 

4. Establish that the illah in the original case applies to new case as well. If the Illah is present in both cases, the ruling from the original case will apply to the new case

Example of Qiyas

The Quran explicitly prohibits the consumption of wine. 

The reason for the prohibition, is the intoxication effect of wine. Intoxication impairs judgment and is harmful to individuals and society. 

New substances like heroin, cocaine, or even other alcoholic beverages are not explicitly mentioned in the Quran and hadith. If the new substances also causes intoxication, impairng judgment similiar to wine. 

Based on Qiyas, the ruling for the new case is that the consumption of the new intoxicating substances is also prohibited, because it shares the same Illah(intoxication) as wine.

Taqlid 

It is an Islamic term which means the act of following the legal rulings and interpretations of established scholars of Islamic law.

It comes from the word Qalad which means ‘to imitate’ or ‘to follow’

Istihsan

It is an Arabic word which means ‘to consider something good’ or ‘to something as preferable’.

It refers to the use of a jurist’s own judgment to determine the best solution to legal problem, even if it might seem to contradict a direct analogy(Qiyas) to existing legal ruling.

Istishab 

It refers to the presumption of continuity. It comes from the Arabic word ‘sahba’ which means ‘to accompany’ or ‘to continue’. 

It signifies the idea that a previously established state of affairs is presumed to continue unless there is evidence to the contrary.

Example: a child born to a married couple is automatically presumed legitimate. The presumption continues based on istishab unless there is strong evidence to the contrary(like non consumption of marriage)

Talfeeq 

It comes from the Arabic word ‘Falq’ which means “patch’ or ‘sew together’. 

It refers to the practice of combining legal rulings or opinions from different schools of thought to create a new legal position 

In this context it signifies stitching together legal elements from different schools of thoughts . It allows flexibility and adaptibility in Islamic law. 

Istidlal 

It means to ‘inference’, ‘deduction’ or ‘seeking proof’ . 

It refers to the process of deriving legal ruling or arguments from existing sources of islmic law. 

It primarily relies on the Quran and Sunnah and establishes legal principles derived from these sources.

Custom

Customs (Urf) in Muslim Law are traditional practices followed by people over time.

They are accepted as a source of law if they don't go against the Qur'an and Hadith.

Customs help fill gaps where Islamic texts are silent and reflect local traditions.

Only valid, reasonable, and widely accepted customs are recognized in Muslim Law