Muslim Law Introduction, Schools & Sources

Muslim Law Introduction, School & Sources

Who is a Muslim?

The term Muslim means submission. A Muslim is a person who follows Islam. Muslim law applies to a born Muslim or a person who is a convert Muslim.

Muslim law even applies to certain other categories of people also such as the Khojas, Halai Memons, Sunni Bohras of Gujarat Daoodi, and Sulaimani Bohras and to Molesalam Broach Girasis.[2]

In Azima Bibi v. Munshi Samalanand, (1912) 17 CWN 121, it was observed that a child born out of a Muslim couple would be Muslim, even if he by choice goes to a Hindu temple. The person would be a Muslim, till the time he does not renounce his religion and converts to another religion.

In Bhaiya Sher Babadur v. Bhaiya Ganga Baksh Singh, (1914) 41 IA 1, it was held that
if a Muslim woman has a child from a Hindu man but the child from the time he was born was brought up as a Hindu, then, in this case, he would be called a Hindu.

The right to convert is given under Article 25 of the Constitution of India, which guarantees every citizen of India, freedom to practice, profess and propagate one’s religion. There are many instances in which a Hindu man who intends to get married for a second time, which is prohibited under their set of family laws, purposefully converts to a Muslim to misuse it and escape from the punishment given under section 494 (bigamy) of Indian Penal Code, 1860.

The Supreme court in Sarla Mudgil v. Union of India (AIR 1995 SC 1531) and Lily Thomas v. Union of India (AIR 2000 SC 1650), has held that, if a Hindu married man converts his religion to Muslim just because of the reason as to marry a second time then it will be void and he will be punished under Section 494 of IPC for committing bigamy.

Under Muslim law, if a married man renounces his religion then in that case his marriage ends immediately but this is not the case for Muslim women who convert, her marriage would not come to an end if her marriage was done according to the rituals of Muslim law. Unless and until she was a convert Muslim and again re-embraces her faith.

Story of Prophet Muhammad

Trying to summarize the life and legacy of Prophet Muhammad (peace be upon him) in this short guide will not do him justice. We hope to dedicate a future guide entirely to him.

However, we will try give you a short peek into his life by focusing on the major phases throughout his biography. This will include the phase of his life before he became a Prophet, the 13 years he spent in Makkah, the 10 years he spent in Madinah, and the end of his life.

Life Before Prophethood

Muhammad (peace be upon him) was born during the year 570 according to the Gregorian calendar in the city of Makkah. He was an orphan as his father passed away before he was born.

When he was six years old he embarked on a journey with his mother Aminah to a different city called Madinah to visit his maternal uncles. On their way back to Makkah his mother passed away in a city known as al-Abwaa. Both of his parents were gone before his 7th birthday.

Soon afterwards his grandfather Abd al-Muttalib became his guardian. However, just a few short years later his grandfather also passed away when Muhammad (peace be upon him) was eight years old.

Before reaching the age of 10 his mother, father, and grandfather were no longer in his life. He was deprived of parental love at a very young age.

After their passing Muhammad (peace be upon him) was raised by his paternal uncle, Abu Talib. His uncle was a respected community leader in Makkah. Abu Talib became his new guardian, treated him with care, compassion, and helped him grow into a fine young man.

As Muhammad (peace be upon him) was growing into a young adult the community started to take notice of him. He built a good reputation for himself as he would tend sheep for the people of Makkah, safeguard their possessions, speak the truth, be reserved in his demeanor, and use sound judgement.

Well before prophethood he was the best of his people in character and in attitude. He was known for being generous, patient, truthful, and sincere. The people of Makkah admired his noble character and gave him the title al-Ameen (the trustworthy).

He later found employment with a successful merchant in Makkah by the name of Khadija. She had a reputation for being a savvy businessperson. He became one of Khadija’s agents and would travel on behalf of her to do business in Syria. Khadija was very impressed with his good character, honesty, and sincerity.

Khadija would eventually take an interest in him, and not long after the two would get married. Muhammad (peace be upon him) married Khadija at the age of 25.

 Being Chosen as a Prophet of Allah

Muhammad (peace be upon him) received his first revelation while in a cave called Hira on the outskirts of Makkah. This cave was a place where he used to go to regularly for spiritual retreats and to perform worship. One day during one of his retreats in the year 610, at the time he was 40 years old, the angel Jibreel (Gabriel) suddenly appeared before him.

The angel came to him and asked him to read. The Prophet (peace be upon him) replied, “I do not know how to read.” The Prophet (peace be upon him) added, “The angel caught me (forcefully) and pressed me so hard that I could not bear it any more. He then released me and again asked me to read and I replied, ‘I do not know how to read.’ Thereupon he caught me again and pressed me a second time till I could not bear it any more. He then released me and again asked me to read but again I replied, ‘I do not know how to read (or what shall I read)?’ Thereupon he caught me for the third time and pressed me, and then released me and said,

This event was the beginning of revelation, and it was also the moment Muhammad (peace be upon him) became a Prophet of Allah.

Muhammad (peace be upon him) left the cave and hurried home. His heart was pounding in fear of what he just experienced. He immediately went to his wife Khadija and explained what happened to him in the cave of Hira saying “I feared for myself”. After hearing this she calmed him down and said:

“By Allah, Allah will never forsake you, for you uphold the ties of kinship, help the weak, honour your guests, give in charity and help when someone is stricken with calamity.”

Khadija would become the first person to accept Islam.

Not long afterwards Khadija took Muhammad (peace be upon him) to go see her cousin Waraqah ibn Nawfal who was a Christian. When Waraqah was told the news of the incident in the cave of Hira he gave Muhammad an explanation. Waraqah told him that the angel he met was the same angel who Allah had sent to Musa (Moses) with revelation. Muhammad had now become a Prophet of Allah and like the Prophets of the past, it was his duty to guide the people to the truth. Waraqah told Muhammad to be patient because some of the people of Makkah would deny the message of Islam and persecute him.

Time in Makkah

The Prophet (peace be upon him) stayed in Makkah for 13 years calling to monotheism: worshiping Allah alone without any partner. He started to call people to the religion in secret with a small group of people.

This group of people were very close to him which included relatives from within Quraysh, the clan the Prophet’s family is from. He later started to call large groups of people to embrace Islam, believe in one God, and believe in him as a Prophet.

Only a small number of Muslims believed in his message in the early years of Prophethood and those who believed were prosecuted by the people of Makkah. Some were tortured and others were killed. Many of the people who were plotting to harm the Muslims included members from within the Quraysh.

To help keep the Muslims away from further prosecution Muhammad (peace be upon him) later commanded some of the Muslims to migrate to Abyssinia (modern day Eritrea and the northern half of Ethiopia). The King of Abyssinia allowed the migrant Muslims to stay within his lands where they were safe from being harmed.

In the year 619 the Prophet’s uncle Abu Talib passed away. This was a significant loss for Muhammad (peace be upon him) because this man had raised him after the death of his parents. He was also a widely respected community leader who defended the Prophet from the persecution of the Quraysh. Now that his protector Abu Talib was no longer around the persecution in Makkah increased and intensified.

That same year his beloved wife Khadija passed away as well. This year in the Prophet’s life became known as the Year of Sorrow because of the losses of two beloved people.

Despite the hatred shown from some of the people of Makkah during those 13 years, the number of Muslims increased and Islam was growing. Allah continued to send Jibreel to reveal more verses of the Quran to Muhammad (peace be upon him). The Prophet would then teach these verses to the early Muslims.

At the end of those 13 years it was time for Muhammad (peace be upon him) to leave Makkah and find a new home for the Muslims.

Migrating from Makkah to Madinah (Hijrah)
The Companions of Muhammad (peace be upon him), the early Muslims, were commanded to migrate to the city of Madinah. Some were prevented and were not able to migrate and others migrated in groups. All that was left of the Muslims in Makkah was the Prophet himself and two of his companions: his close friend Abu Bakr and his cousin Ali.

The Quraysh plotted to kill Muhammad (peace be upon him) after realizing his Companions had migrated to Madinah. The Quraysh feared he would migrate as well and the religion of Islam would spread to other parts of the world. Muhammad (peace be upon him) was informed by angel Jibreel about the murder plot. With this critical piece of information he made a plan with his two companions to leave the city of Makkah safely.

The night before leaving Makkah to migrate to Madinah, the Prophet (peace be upon him) slept at Abu Bakr’s house instead of his own home. He also told his cousin Ali to sleep in his bed that same night and trick the Quraysh into thinking that he was unaware of the murder plot.

When nightfall arrived a few members from the Quraysh lied in wait outside the house of the Prophet (peace be upon him), waiting for him to come out so they could kill him. Their plot was foiled when they realized that Muhammad was already gone. They were caught off-guard and the person they wished to kill had escaped.

Allah had saved Muhammad from the wicked plot of these people and revealed these verses:

Soon afterwards the Prophet (peace be upon him) and Abu Bakr used this opportunity to leave Makkah and make their way to Madinah. Ali would follow suit and make his way to the new city shortly thereafter. This major event in Islamic history became known as the Hijrah and also marks the beginning of the Islamic calendar.

Time in Madinah

There were many Muslims already living in Madinah before the migration occurred. During the Prophet’s arrival to the city the Muslims who lived there were very joyful. Many were proclaiming “Allahu Akbar” (God is Great) out of happiness. Men, women, and children were coming out of their homes to meet him.

When he first arrived at the city he built the first mosque in the history of Islam at a town called Quba, located on the outskirts of Madinah. He also built a second mosque within Madinah.

At the time the Muslims would always face Jerusalem when they performed their prayers. Soon afterwards the direction of prayer was changed to Makkah, the city the Muslims had migrated from where the Holy Ka’ba (Sacred House) is located.

A strong sense of brotherhood between the migrants from Makkah (known as the Muhajiroon) and the residents of Madinah (known as the Ansar) was established by the Prophet (peace be upon him). He also set up treaties with different communities including the Jews and the tribes already living in Madinah.

During his 10 years in Madinah the Prophet (peace be upon him) continued to spread the message of Islam and thousands of people embraced the faith throughout Arabia.

Naturally his enemies in Makkah and elsewhere didn’t sit idly by. The Muslims faced many important battles over the coming years such as the Battle of Badr, the Battle of Uhud, the Battle of the Trenches where the city of Madinah was under siege, and other battles which will not be covered in this beginner’s guide.

One of the most significant events during this time in the Prophet’s life was the Conquest of Makkah. After living in Madinah for 8 years, the Muslims who migrated from their home were finally able to return. Even though the citizens of Makkah were the same people who oppressed the Prophet for many years, Muhammad (peace be upon him) entered into the city with no intention of harming anyone.

Many of the people of Makkah who wronged the Muslims in the past were expecting a slaughter against them. It was only natural for the oppressed to exact revenge against the oppressor.

But Muhammad (peace be upon him) was a human being with the best character. When he entered into the city he made his way to the Ka’ba to remove all of the idols which represented their false gods. Upon doing so he addressed the residents of Makkah and said:

“O Quraish, what do you think that I am about to do with you?”

They replied, “All good (i.e. kindness and pity). You are a noble brother and the son of a noble brother.”

Then the Prophet (peace be upon him) forgave them all saying:

“I say to you as Yusuf (Joseph) said to his brothers, ‘No blame will there be upon you today.’ Go, you are the free ones.”

With Makkah under control, Islam was able to grow even more until most of Arabia had accepted the faith. This good news also meant that it was time for the Prophet (peace be upon him) to perform a deed he was not able to do before: perform the pilgrimage (hajj).

Farewell Pilgrimage and the Final Sermon

The Prophet (peace be upon him) performed Hajj in the 10th year after hijrah (migration to Madinah), and called the people to perform Hajj with him as well.

At the end of the pilgrimage he gathered the attention of the people on the plains of Arafah, an area of land located east of Makkah.

The revelation came to an end and Islam was now a complete way of life for all mankind. The life mission of Prophet Muhammad (peace be upon him) was fulfilled.

He passed away at the age of 63 in the 11th year of the Islamic calendar

His Companions and future generations of Muslims continued to spread the religion to the four corners of the globe. It is because of the Prophet’s legacy and the dedication of previous generations of Muslims that Islam is still preserved and practiced today.

Origin of Muslim Law

Muslim law or Islamic law is known to be originated from the divine and not like the man-made laws that are passed by the lawmakers and are governed by the principles of modern systems of law. Islam signifies submission to the will of God and means peace, purity, salvation, and obedience. Muslims believe that there is only one god, Allah.

The traditional Islamic law or Islam’s legal system is well known as Sharia, it is an Arabic word which in the literal sense is referred to as the way. Sharia is originated from Allah and that is the reason that Muslims consider it as holy. Muslims considered it a word of god’ which regulate and evaluate human conduct. The Sharia is also derived from Prophet Mohammed’s principles and by some of the Muslim legal scholars who interpreted his teachings. It is said that Islamic jurisprudence is also something that goes back to the lifetime of Mohammed. For Muslims, the Quran’ is the only disclosed book of Allah.

In the case of Narantakath v. Prakkal (1922) ILR 45 Mad 986, it was stated that there are two basic beliefs of Muslims, first, the existence and oneness of God, and second was the belief in the truth of Prophet Mohammed’s mission.

Sources of Muslim Law
The primary sources of Muslim law are the Quran, the Sunnat (the way of the Prophet), the Ijma (consensus of Islamic scholars), and the Qiyas (reasoning by analogy). Other secondary sources are judicial decisions, customs and legislation.

Sources of Muslim Law

Primary Sources:

1. Quran

The word Quran is derived from the Arabic word Qurra which means to read. Every word of Quran is the word of god, communicated to the Prophet Mohammed through angel Gabriel for the benefit of mankind, at different times, places, and situations during the period from 609 to 632 A.D (23 years).

The whole body of the Quran was given to the world in small incomplete parts during the lifetime of the Prophet. The Quran was never compiled or arranged in a proper form. In the starting, it was written down on palm leaves, skin or parchment, so it was available in this form only.

The Quran was structured in Arabic and it consists of 114 chapters, which are known as suras. The suras contain 6666 verses which are called Ayats and the total number of 77, 934 words. Out of these verses, 200 dealt with legal principles such as marriage, maintenance, transfer of property, inheritance, etc. The Quran was disclosed over two periods which are:

1. Meccan
2. Medinan

The words of the Quran is divine in nature, it cannot be amended, revised, or modified by any institution or human agency. The sacred book has been translated into a number of languages as well.

Aga Mohammad Jaffer v. Koolsom Beebee and others,
It was a judgment delivered by the Privy Council on 7th April 1897.
It was observed that where a passage of the Quran was interpreted in both Hedaya (a work of Sunni Law), and in the Imamia (a work of the Shia Law) it was not open to a judge to construe it in a different manner.

The courts should not compare any traditional settled law with Quran.
 

2. The Sunnat

Sunnat is also known as Hadis or Sunna, it is the traditions of the Prophet Mohammed. The term Sunnat means a procedure, the trodden path or a way of action. Quran consists of the words of Allah but on the other hand, Sunnat indicates some precedents, acts, language, and the practice of the Prophet. Whatever the actions of the Prophet were or the Prophet said or did was considered as a tradition. According to Islamic law, there are two types of revelations i.e. manifest (Zahir) and internal (Batin).

The Traditions of Sunna comprises of:

2. Sunnat-ul-Fail
3. Sunnat -ul-Tuqrir
4. Sunnat-ul-Qaul

Sometimes, the Prophet gave his opinion or after consulting with some of his companions but most of his verdicts were influenced by divine authority. He was considered as a role model and others were inspired by whatever he did. This was known as Sunnat-ul-fail, which means whatever he did by himself.

There were many instances when in his presence people did some acts which were in accordance with the Quran. The acts of the people which he allowed without openly expressing his consent through words were known as Sunnat -ul-Tuqrir’. All the enjoined words & the precepts of the Prophet were known as Sunnat-ul-Qaul.
 

3. Ijma

Ijma is a consensus within Muslim jurists on a particular legal issue. In simpler words when Quran and other traditions were not able to provide any rule of law for a particular problem, the jurists unanimously gave their decision and this was referred to as Ijma.

Those people who had much knowledge and learning about the law were known as Mujtahids (jurists). The Ijma derives its power and authority from both the Quran and the Sunnat due to which it can never be contradictory to anyone of them.

There are two types of Ijma or consensus:

3. Ijma-al-ummah (community consensus)
4. Ijma-al-aimmah (religious authorities consensus)
    
5. Qiyas

Qiyas is the fourth primary source of Islamic law, it means analogical reasoning. The term in the literal sense is known measuring or ascertaining the length, quality, and weight of something. There are no clear authorities of Qiyas in the Quran. However many legal jurists have provided several proofs from the Quran and Sunnat and also from the practices done by the companions as indirect evidence to support the authority of Qiyas.

The Hanafi school of thought very strongly supports Qiyas.[1] As Abu Hanifa quoted – The knowledge of ours is an opinion; it is the best we have been able to achieve. He who can arrive at different conclusions is entitled to his own opinion as we are entitled to our own.

Secondary Sources

1. Judicial Decisions

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

2. Customs

Customs are basically practices that people follow continuously for a long period of time. In fact, it is followed for so long that it obtains the status of law in some cases. In Muslim law there are various customs which regulate the practices of people.
 

3. Legislation

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

Schools of Muslim Law

Introduction

• At the time of the death of the Prophet, there was a quarrel between the two groups for imamate (the temporal leadership of the religion).
• One group advocated the principle of the election in choosing the ‘Imam’, this group is known as ‘Sunni’. The adherents to the ‘Sunni’ doctrine are called ‘Sunni Muslims’.
• While, the other group opposed the principle of the election in choosing the ‘Imam’ and proclaimed that ‘Ali’ is the successor of the ‘Prophet’.
  • They firmly believe that imamat must be devolved upon the successors of the prophet, i.e.
    • Ali, the son in law
    • Fatima, the daughter of Prophet.
  • This group is known as ‘Shia’.
• Thus, there are two main schools of Muslim Law:
  • Sunni school
  • Shia school

Sunni Schools

In Sunni sect, there are four major schools of Muslim law which are as follows:

1. Hanafi School (699 AD – 767 AD):

• ‘Hanafi School’ is the first and the most popular schools in Muslim law.
  • Before being named ‘Hanafi’, this school was known as ‘Kufa School’ which was based on the name of the city of Koofa in Iraq.
  • Later, this school was renamed ‘Hanafi School’ based on the name of its founder ‘Abu Hanafi’.
• The founder of this school was ‘Imam Abu Hanifa’. He had two most important disciples:
  • Abu Yusuf
  • Imam Muhammad.
• In India, most of the Muslims follow ‘Hanafi school’. This school was followed in China, Pakistan, Afghanistan, Turkey as well. Among the entire Muslim population around the world, the followers of this school are one third.
  • They followed a simple methodology and were amongst the most popular and prevalent schools.
• They did not rely much on the prophet’s hadiths until they were proved to be true beyond a reasonable doubt. They relied very much on Qiyas. They even extended ‘Ijma’ and gave preference to ‘Isthiasan’.
  • This school was believed to be stricter than other schools in lifting traditions.
  • Also, in the application of the law, Abu Hanifa believed that it is important to rely on usages and local authorities.

2. Maliki School (711 AD – 795 AD):

• ‘Imam Malik’ was the founder of this school. This school gets its name from Malik-bin-Anas. He was the ‘Mufti of Madina’.
  • During his period the ‘Kufa’ was considered as the capital of Muslim ‘Khaleefa’ where ‘Imam Abu Haneefa’ and his disciples flourished with ‘Hanafi’ Schools.
• People of ‘Madina’ also followed a certain way of ‘Islam’, this way was also followed by the ‘Maliki School’ and accepted the practices of the people of ‘Medina’ and the sayings of the companions of the prophet.
• They followed ‘Qiyas’ only when the ‘Quran’ or ‘Sunnat’ were silent on that particular matter. They also followed the ‘Public Interest’ –Al-masalih, al- mursalah.
  • The pupils of ‘Iman Malik’ were ‘Imam Muhan’ and ‘Imam Shafi’.
• This school was popularly followed in North Africa, Morocco, Spain, Algeria, Tanzania, etc.

3. Shafi School (767 AD – 820 AD):

• Imam Muhammad Ibn Idris Ash-Shafi was the founder of this school. He was the student of Imam Malik of Madina
  • Then he started working with the disciples of ‘Imam Abu Haneefa’ and went to ‘Kufa’.
• He concluded the ideas and the theories of ‘Hanafi School’ and ‘Maliki School’ in a friendly manner.
  • The ‘Imam Shafi’ was considered as one of the greatest jurists of Islam. He created the classical theory of the Shafi’s Islamic Jurisprudence.
• The followers followed all four sources and rejected the public interest methodology followed by the ‘Maliki school’ and were also not in favor of ‘Isthiasan’.
  • He was the first person to collect ‘Sources of Law’.
• Their teachings were popular in Lebanon, Syria, Egypt, and some parts of Iraq, Pakistan, Iran, Yaman, and India as well.

4. Hanbali School (780 AD – 855 AD):

• ‘Ahmad bin Hanbal’ was the founder of the ‘Hanbali School’ of Islamic Jurisprudence.
• They were strict regarding the traditions of the ‘Prophet’ and strictly confirmed to the principle of Hadiths.
  • Their methodology depended on the Quran, Ijma, and Sunnat.
• They followed ‘Qiyas’ only when they believed it to be necessary. They were dominant in Saudi Arabia mostly.

Shia Schools

• Shia Sect is considered as the minority in the ‘Muslim’ world. They enjoy the political power only in Iran though they don’t have the majority in that state also. As per Shia Sect, there are three schools of law:

1. Ithna-Ashari:

• These schools are based on the followings of ‘Ithna-Ashari’ laws. The followers of these schools are mostly found in Iraq and Iran.
• In India too, the majority of ‘Shia Muslim’ follow the principles of the Ithna-Ashari School.
  • They are considered political quietists. This school is considered as the most dominant school of the ‘Shia Muslims’.
• The Ja’fari Fiqh of the ‘Shias’ in most cases is indistinguishable from one or more of the four Sunni madhahib, except mutah is considered as a lawful marriage.
• The people who follow the ‘Ithna Asharis’ school believe that the last of the Imams disappeared and will be returning as Mehdi (Messiah).

2.The Ismailis:

• The school of ‘Ismailis’ accepted only seven ‘Imams’ and were hence known as the ‘Seveners’. Their origin could be traced to Egypt. There are two groups of them namely:
  • The Kohojas or Eastern Isamilis who were believed to be followers of ‘Aga Khan’ who was the 49th Imam in the line of the prophet.
  • Western Ismailis popularly called ‘Bohoras’ who were divided among the ‘Sulaymanis and Daudis’. They prevailed in Central Asia, East Africa, Arabia, Pakistan, Syria, and Iran.

3. Zaidya:

• Imam Zaid founded this school.
• The followers of this school believed that ‘Imam’ should be based on election, so the succession in this school is through the election. They believed ‘Imam’ to be above all and considered him as a ‘right guide’.
• The followers of this school are not found in India but are maximum in number in South Arabia. This sect of the ‘Shia school’ is the most dominant among all in ‘Yemen’.
• The followers of these schools are considered political activists. They often reject the ‘Twelver Shia’ school philosophies.