Introduction to The Schools Of Muslim Law
Introduction to The Schools Of Muslim Law
Muslims are people who follow or practice Islam. Muslims consider the Quran, their holy book, to be the verbatim word of God as revealed to the Islamic prophet and messenger Muhammad. According to Aghnidas, a muslim is one who believes in Mohammad as a Prophet and one who believs that there is one God. Muslims, for the purpose of the application of Muslim law, fall into categories:
Muslims by birth and origin- if both the parents of a person were muslims at the time of his birth, he would be a muslim unless he renounces islam,
Muslims by religion or conversion- a person who converts into a mohammedan no matter whether he was before a Christian, Hindu and practices such manner of living, he shall become a muslim.
According to the Shariat, even if one of the parents is a Muslim, the child will be Muslim. Under Hindu Law if one of the parents is a Hindu and the child is brought up as a Hindu, the child will be Hindu. The rule of Muslim law is subject to this rule of Hindu law.
SOURCES OF MUSLIM LAW
Muslim law are classified into two categories:
Primary sources: According to Mulla, there are four formal primary sources also known as ‘shariah sources’. These sources have the approval of the Prophet himself.
Quran: the quran is the basis of Muslim law. It represents the will of God communicated through Prophet. It runs into 6000 verses but only 200 deals with the legal principles and of these, only about 80 verses deal with the law of personal status. The prophet from time to time used to deliver preaching to his followers saying that these were the message from God. Quran is considered as divine origin; it is the first source of Muslim law and it is unchangeable and authoritative.
Ahadis: according to islam, the second source of law is sunna and ahadis. These are the traditions of prophets. Whatever the prophet said or did without reference to God is treated as his traditions and considered to be the second source of Muslim law. They are of three kinds- sunnat-ul-qual, sunnat-ul-jail and sunnat-ul-taqrir.
Ijma: these are the unanimous decisions of the jurists. When Quran and other additions could not supply a rule of law, jurists used their concurrent opinion and laid down a new law. These jurists were not free to give their decision without any basis. The authority of Ijmaa, as a source of law based upon tradition, “my followers can never agree upon what is wrong”.
Qiyas: etymologically qiyas means measuring, accord of equality. If there was any problem before the society on which the former three texts were silent then a method of comparing the problem with a similar problem of which solution was given in the texts was adopted to get the law.
Shias do not recoginse ijma and qiyas.
Secondary sources: in the absence of primary sources, the law can be obtained from the following sources:
Urf (custom): customs and usages which were sanctioned by the jurists either expressly or impliedly. A custom is a tradition passing on from generation to generation and has obtained the force of law in particular locality. The Shariat Act, 1937, applies to Muslims all over India abolishes most of the customs from Muslim law. But customs are still applicable to Muslims in the matters relating to agricultural lands, religious and charitable endowments.
Judicial decisions: they have played an important role in laying down rules of Muslim law in accordance with the socio economic conditions of the Indian Muslims.
Legislations: in India, Muslims are also governed by various legislations passed by the parliament or state legislature such as Dissolution of Muslim Marriages Act, 1939, The Mussalman Waqf Validating Act, 1913 etc.
Justice, equity and good conscience: under Muslim law principles of justice, equity and good conscience can also be regarded as one of the sources.
SCHOOLS OF MUSLIM LAW
There are two major sects of Muslims in India- Sunnis and Shias. The majority of the muslims are Sunnis. The ‘Sunnis’ base their doctrine on the traditions and consider decisions of jurists as equal in authority to Quranic rules. The ‘Shias’ reject not only the decisions of the jurists but also the traditions not handed down by Ali (successor of prophet) or his descendants.
There are four major schools of Sunnis:
Hanafi School: this school is named after Abu Hanifa and governs a vast majority of Muslims all over India. It gives importance to traditions as a ‘source of law’. If placed little reliance on the mass of oral traditions and applied severe test based on reason and analogy to find out their genuineness
Maliki School: this school was established by Malik-ibn-Anas of Medina. It recognises the traditions of companions and as far as possible, new rules should be obtained exclusively from traditions.
Shafei School: this school was founded by Ash Shafei and is found in most part of Southern India; it consists of next largest group of Muslims of India. It also relied on traditions but examined them in the light of legal reasoning and logic in order to get a very balanced and systematic rule of law. He not only approved Ijma as a source of new law but also enlarged its scope.
Hanbali School: it was established by Ibn Hanbal. He rigidly adhered to traditions of Prophet and neglected Ijma and Qiyas. Under this school, there was no scope of private judgement and human reasoning.
There are three major schools of Shias:
Imamia School: this school is also known as Ithna Asharia School. This school is further divided into two sub-sects- i) Akhbari ii) Usuli. Akhbaris are very orthodox because they follow rigidly traditions of Imams. Usulis, on the other hand, interpret the texts of Quran with reference to the practical problems of day to day life.
Ismailia School: they constitute the smallest minority group of Muslims and they considered Ismail as seventh Imam.
Zyadis School: it was founded by Zyad and this school incorporates some of the Sunni principles as well
First published on January 4, 2021.