Various sources of Islamic law are used by Islamic jurisprudence to elucidate the Sharia, the body of Islamic law. The primary sources, accepted universally by all Muslims, are the Koran and Sunnah. The Koran is the holy scripture of Islam, believed by Muslims to be the direct and unaltered word of Allah. The Sunnah consists of the religious actions and quotations of the Islamic Prophet Muhammad and narrated through his Companions and Shia Imams. However, some schools of jurisprudence use different methods to judge the source’s level of authenticity.

The Quran and Sunnah are basic sources of information, both of which are uniformly recognized by all Muslims. The Koran is a scripture of Islam, and Muslims consider it a direct message from Allah. Sunnah is a collection of religious activities and citations of the Islamic prophet Muhammad recorded by his followers and Shiite Imams. On the other hand, some faculties of law take different approaches to determine the effectiveness of sources. The main source does not cover all possible scenarios, and case law must rely on the source and the actual text to determine the appropriate course of action. According to the Sunni Faculty of Law, the secondary sources of Islamic law are Islamic law scholars’ practices, court decisions, legislation, fairness, justice, and conscience

The Islamic law is referred to as “Sharia”. Islam has given the most comprehensive legal system to mankind. Islam has its own personal, civil, criminal, evidence and international law.

There are two types of sources under Muslim law, they are:-

1. Ancient sources

2. Customary sources

3. Modern sources

1. Ancient sources

A. The Quran

B. The Sunnah

C. Ijma’ (consensus)

D. Qiyas (analogy)

A. The Quran

Muslims believe the Quran to be the direct words of Allah, as revealed to and transmitted by the Prophet Muhammad. All sources of Islamic law must be in essential agreement with the Quran, the most fundamental source of Islamic knowledge. When the Quran itself does not speak directly or in detail about a certain subject, Muslims only then turn to alternative sources of Islamic law

Muslim jurists agree that the Koran in its entirety is not a legal code (used in the modern sense); rather its purpose is to lay down a way of life which regulates man’s relationship with others and God. The verses of the Koran 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 contains about five hundred verses or one-thirteenth of it. The task of interpreting the Koran has led to various opinions and judgments. The interpretations of the verses by Muhammad’s companions for Sunnis and Imams for Shias are considered the most authentic, since they knew why, where and on what occasion each verse was revealed.

B. The Sunnah

Sunnah is the traditions or known practices of the Prophet Muhammad, many of which have been recorded in the volumes of Hadith literature. The resources include many things that he said, did, or agreed to and he lived his life according to the Quran, putting the Quran into practice in his own life. During his lifetime, the Prophet’s family and companions observed him and shared with others exactly what they had seen in his words and behaviors i.e. how he performed ablutions, how he prayed, and how he performed many other acts of worship. People also asked the Prophet directly for rulings on various matters, and he would pronounce his judgment. All of these details were passed on and recorded, to be referred to in future legal rulings. Many issues concerning personal conduct, community, and family relations, political matters, etc. were addressed during the time of the Prophet, decided by him, and recorded. The Sunnah can thus clarify details of what is stated generally in the Quran.

Much of the Sunnah is recorded in the Hadith. Initially, Muhammad had instructed his followers not to write down his acts, so they may not confuse it with the Koran. However, he did ask his followers to disseminate his sayings orally. As long as he was alive, any doubtful record could be confirmed as true or false by simply asking him. His death, however, gave rise to confusion over Muhammad’s conduct. Thus the Hadith were established. Due to problems of authenticity, the science of Hadith (Arabic: `Ulum al-hadith) is established. It is a method of 2 textual criticism developed by early Muslim scholars in determining the veracity of reports attributed to Muhammad. This is achieved by analyzing the text of the report, the scale of the report’s transmission, the routes through which the report was transmitted, and the individual narrators involved in its transmission. On the basis of these criteria, various Hadith classifications developed. 

C. Ijma’ (consensus)

In situations when Muslims have not been able to find a specific legal ruling in the Quran or Sunnah, the consensus of the community is sought (or at least the consensus of the legal scholars within the community). The Prophet Muhammad once said that his community (i.e. the Muslim community) would never agree on an error.

Ijma is also termed as “Foundation of foundations’ ‘. Validity of Ijma is based on a Sunnah of the Prophet which declares “God will not allow his people to agree on an error”. Sunni jurisprudence is based on Ijmas. Hanafi’s belief that the law must change with the changing time is what is reflected in Ijma.

All the schools of Sunnis accept Ijma as a source of law except Hanbals who formed usul from Sunnah and gave liberal interpretation to the traditions of the Prophet. During the expansion of Islam in various parts of world Koran and Sunnas felt insufficient and their developed Ijmas. 

D. Qiyas (analogy)

Qiyas or analogical deduction is the fourth source of Sharia for the Sunni jurisprudence. Shiites do not accept qiyas, but replace it with reason. Qiyas is the process of legal deduction according to which the jurist, confronted with an unprecedented case, bases his or her argument on the logic used in the Koran and Sunnah. Qiyas must not be based on arbitrary judgment, but rather be firmly rooted in the primary sources. 

In cases when something needs a legal ruling but has not been clearly addressed in the other sources, judges may use analogy, reasoning, and legal precedent to decide new case law. This is often the case when a general principle can be applied to new situations. Abu Hanifa developed a new source called istihsan, or juristic preference, as a form of analogical deduction (qiyas). Istihsan is defined as:

• Means to seek ease and convenience,

• To adopt tolerance and moderation, 

• To overrule analogical deduction, if necessary.

2. Customary source

In its early stage, Islamic jurisprudence was heavily inspired by prevailing customary law e.g. the practices of the Caliphs, the decisions of the judges and the traditions of the people. But even then, the Quran acted as a mentor guiding the people. For instance, Caliph Abu Bakr made alms payment compulsory in the light of the Quran; the Qazis i.e. judges did equity by seeking guidance from Quranic verses, and it was under Verse 3 of Surah Al-Nisa that the customary right of unlimited polygamy was curtailed only to a maximum of four wives. Thus, the supremacy of Quran as a primary Islamic source got fully established in that epoch. Though all schools believe in Four ancient sources still they do not discard the existence of Customs. Prophet also retained age-old customs of Arabia but seen that those were not in conflict with Muslim law. 

Customs are accepted as supplementary to Muslim law. In the initial period, a Code of Islamic law was not there hence the Prophet and his companions left some of the matters on customs. For example, Remuneration of foster mothers, compensation for civil wrongs, etc. Muslim Jurists laid down four conditions of a valid Custom :

1. a custom must be of regular occurrence i.e. continuous and certain

2. it should be universal

3. it should be reasonable

4. It should not be in contravention of any express text of the Koran or the Sunnah

5. It need not be ancient and immemorial

3. Modern sources

In addition to the above main Sources of Law, we find that the law is occasionally supplemented by other principles also. The following can be summarized.

1. Isti Hasan – Juristic preference – Equity.

2. Taqlid – Law of Precedents/ judicial precedents.

3. Legislations.

A.Equity 

Istihsan of the Hanafi school and the doctrine of maselihul marsala of the Maliki school used to override the Kiyas and allowed jurists to deduce law on public good . Though this principle of equity is developed by the Britishers , some of the schools of Muslim law have applied it. Many of the cases under Muslim law which are decided by the British Courts naturally used this principle of equity.

The doctrine of equity, justice & good conscience is regarded as one of the 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, the special circumstances required, rather than a law which analogy indicated. Several areas of Muslim were modified so as to meet the changing conditions in India.

B. Judicial Precedents :

Decisions of courts have to some extent contributed to Muslim law. It is not a part of Muslim law. The decisions of Kazis never constituted a precedent in the sense of English law. Nearest approach to this doctrine in Muslim law are ‘Fatwas’. which possess merely moral sanctions and also a legal authority. Mufti used to pronounce Fatwa one who was a scholar yet the Kazi was not bound by it. Various collections of Fatwa of which Fatwa-al-Alam  Sigiriya, is the most famous one. Many of the traditions of gift and Wakf have been modified to protect women and there is a mixture of precedent under Muslim law. The doctrine of Stare Decisis is a part of Muslim law today. 

It is said that the law protects only the vigilant. This is very much right. In the case of Muslims in India. the development of Muslim law by the judiciary came to its full development in the 1980s because till then, Muslim men and women have been sleeping on their rights or were ignorant about their rights.

The first landmark judgment that deals with Muslim personal law were the 1986 judgment in Shah Bano Begum v. Md. Ahmed (AIR 1985 SC 945) In this case, the apex court held that Muslim women have a right to maintenance under Section 125 of the Cr. P.C even if the Quran or their personal laws have provided for an alternate remedy.

A 73-year-old woman called Shah Bano was divorced by her husband using triple talaq (saying “I divorce thee” three times) and was denied maintenance. She approached the courts and the District Court and the High Court ruled in her favour. This led to her husband appealing to the Supreme Court saying that he had fulfilled all his obligations under Islamic law.

The Supreme Court ruled in her favour in 1985 under the “maintenance of wives, children and parents” provision (Section 125) of the All India Criminal Code, which applied to all citizens irrespective of religion. Further, It recommended that a uniform civil code be set up.

The same ratio was upheld by the apex court in Daniel Latifi v. Union of Inia. Recently (2001) 7 SCC 740, Muslim Women’s Act (MWA) was challenged on the grounds that it violated the right to equality under Articles 14& 15 as well as the right to life under Article 21. The Supreme Court while holding the law as constitutional, harmonized it with section 125 of CrPC and held that the amount received by a wife during the iddat period should be large enough to maintain her during iddat as well as provide for her future. Thus under the law of the land, a divorced Muslim woman is entitled to the provision of maintenance for a lifetime or until she is remarried.

in the leading case of Shayara Bano v. Union of India (2017) 9 SCC 1 , the apex court held the system of instantaneous divorce by the utterance of the word ‘talaq’ thrice orally unconstitutional because the right to instantaneous divorce is only with the men and not women. Further, the system is arbitrary and hence, violative of Article 14. Therefore, the judiciary has assisted in the development of Muslim personal law.

C. Legislation:

The Hanbali school recognized some parts of legislation by the name Nizam (Ordinance/decree), Farmans, and dastarul amals, but they were not related to personal laws. Britishers never interfered in personal laws, hence Muslim law suffered a lot by not having proper legislation. The Prophet was the supreme maker of law; hence no one can make Muslim law. In case any change is made, it is considered as an invasion. In spite of this, there are a number of Acts.

Legislations mean statutes enacted by the Parliament or the State. legislature for the regulation of human actions in a particular aspect. There have been several legislations enacted by the Parliament to lay the foundation of Muslim law in India. The first law that was passed was the Shariat Act, of 1937. In Islam, the entire body of law that governs their day-to-day personal laws, marriage, divorce, etc. is collectively called the Sharia. Thus, based on Sharia and with the object to make it a complete body of Muslim laws, the Act was titled the Shariat Act.

i.The Mussalman Wakf Validating Act 1913.

ii. The Child Marriage Restraint Act 1929.

iii. The Shariat Act 1937.

iv. Dissolution of Muslim Marriage Act 1939.

Conclusion:

These four sources to be particular Quran, Sunna, Ijma and Qiyas are the basic sources of law. Muslim law basically based on verses of Quran and sharpens of hadith. There’s assistant source of Muslim law which resulting of it. Groups of shias does not recognize the Qiyas as source of Muslim law. It is due to the commitment of all that an effective and efficient speculation of personal laws of Islam came into nearness which govers the Muslim community.