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Muslim Law, Sources, and Schools
QUESTION BANK
Q.1 What are the sources of Muslim law?
Q.2 Explain different schools of Muslim law.
SYNOPSIS
Muslim Law: Sources, Schools, and Key Principles
I. Introduction
1. Definition and Scope in India
2. Criteria for Determining Who is a Muslim-
a. According to Ameer Ali: "
b. According to Aghnides:
3. Conditions of Attaining Muslim Status
a. Muslim by Birth:
b. Muslim by Profession:
c. Conversion by Formal Ceremonies:
Conversion to Islam and Rights of Inheritance-
II. Sources of Muslim Law SOURCES OF MUSLIM LAW (Statutory Acts)
1. The Koran (Quran)
2. Sunna (The Sunnat)
3. Ijma
4. Qiyas
5. Customs
6. Equity, Justice, and Good Conscience
7. Precedent
8. Legislation
III. Schools of Muslim Law
Origin of the Schools
1. The Sunni School and its Sub-Schools-
a) Hanafi School:
b) Maliki School:
c) Shafei School:
d) Hanbali School:
2. The Shia School and its Sub-Schools
a) Zaidya School:
b) Ismailya School:
c) Ithna Ashria School:
IV. Core Differences Between Shia and Sunni Schools
V. Conclusion
Muslim Law: Sources, Schools, and Key Principles
I. Introduction
1. Definition and Scope in India
The terms "Mohammedan Law", "Muslim Law", "Mussalman Law", and "Islamic Law" are entirely synonymous. In India, these terms specifically refer to that portion of Islamic Civil Law which is applied to Muslims as a personal law.
Like Hindu Law, Muslim Law operates as a personal law applicable exclusively to individuals who profess Islam. Within Islamic jurisprudence, religion (Fiqh) and law (Shariah) are so deeply interconnected that it is virtually impossible to separate them.
2. Criteria for Determining Who is a Muslim-
A person's status as a Muslim dictates the applicability of Islamic personal law. Jurists have defined a Muslim through the following frameworks:
a. According to Ameer Ali: "Any person who professes the religion of Islam, in other words, accepts the unity of God and the prophetic character of Mohammad, is a Muslim". b. According to Aghnides: A Muslim is defined as:
i. One who believes in the mission of Mohammad as a Prophet.
ii. One who testifies that there is only one God and that Mohammad is His Prophet.
iii. One who holds a belief in the essential tenets of God and the Prophet Mohammad.
Ultimately, the core essentials of Islam rest upon two fundamental declarations:
i. There is only one Allah.
ii. Mohammad is His Prophet.
3. Conditions of Attaining Muslim Status
A person may be considered a Muslim under any of the following three conditions:
a. Muslim by Birth:
A person is a Muslim if both parents are Muslims. Under strict Shariat law, if even one of the parents is a Muslim, the child is treated as a Muslim. However, historical Indian judicial precedents have nuanced this:
i. In Skinner v. Orde, it was held that a child is presumed to belong to the religion of the father.
ii. A similar principle was affirmed in Bhaiya Sher Bahadur v. Bhaiya Ganga Bakhsh Singh.
iii. A person born as a Muslim continues to remain a Muslim until they formally renounce Islam after attaining majority.
b. Muslim by Profession:
A non-Muslim can become a Muslim simply by professing Islam—meaning they acknowledge the unity of God and the prophethood of Mohammad. A genuine profession of faith or belief is sufficient; it acts as a form of conversion requiring no formal rituals.
c. Conversion by Formal Ceremonies: A non-Muslim may also choose to embrace Islam by undergoing the formal ceremonies prescribed under Islamic religious rites.
Conversion to Islam and Rights of Inheritance-
When an individual converts to Islam, their legal rights regarding succession change significantly:
In Vohra Bai Khatiji Isabhai v. Vohra Karimbhai, the court held that in the absence of a custom to the contrary, the succession and inheritance of a Hindu convert to Islam are governed strictly by Mohammedan Law, not Hindu Law.
In Chandra Sekharappa v. Government of Mysore, a Hindu man who already had children embraced Islam, married a Muslim woman, and had children with her. Upon his death, the court had to resolve whether his property passed to his Hindu or Muslim family. It was held that his property passed exclusively to his Muslim wife and her children. This aligns with the baseline rule of Muslim law: a non-Muslim cannot succeed to the estate of a Muslim.
II. Sources of Muslim Law
The sources of Muslim Law are split into two categories: Ancient/Primary Sources (The Quran, Sunna, Ijma, Qiyas) and Modern/Secondary Sources (Customs, Judicial Precedent, Legislation, Equity). SOURCES OF MUSLIM LAW (Statutory Acts)
1. The Koran (Quran)
The Quran is the primary, fundamental, and immutable source of Muslim law. Derived from the word "Qure", which means "to read," it represents the literal words of God revealed to Prophet Mohammad through the Angel Gabriel. It distinguishes truth from falsehood and outlines the righteous path for human behavior.
i. It regulates the individual, social, secular, and spiritual life of Muslims.
ii. It consists of 6,000 verses divided into 30 parts and 114 chapters.
iii. Approximately 200 verses deal directly with legal rules and principles. Out of these, 80 verses specifically relate to civil/personal law, while the remainder govern state affairs and spiritual values. Because of its divine origin, it cannot be changed or modified.
2. Sunna (The Sunnat)
The term Sunna signifies a "trodden path, a procedure, or a way of action". It represents the practices, actions, deeds, utterances, and tacit approvals of the Prophet Mohammad. While the Quran contains the direct words of God, the Sunna serves as the foundational guiding light that explains and supplements the text. It is universally accepted as the second primary source of law, binding upon Muslims of all sects.
3. Ijma
Ijma denotes the consensus and collective opinion of the Prophet’s companions or highly qualified legal scholars (mujtahids) of a particular era. It stands as the third primary source of Muslim law. An Ijma is deemed legally valid as long as it does not directly oppose the Quran or the Sunna. Its authority is rooted in a well-known saying of the Prophet Mohammad: "God will not allow his people to agree on an error".
4. Qiyas
Qiyas refers to analogical deductions, measurement, or reasoning by equality. It is the process of extracting a new legal ruling for an unprecedented issue by comparing it to an existing case resolved by the Quran, Sunna, or Ijma. Notably, the Shia school does not recognize Qiyas as a valid source of Muslim law.
5. Customs
Customs played a massive role in regulating human conduct in pre-Islamic Arabia. As a natural source of law, pre-Islamic customs continue to be followed in areas where the primary textual sources are silent.
a. In India, massive historical conversions occurred where entire communities (such as the Khojas, Cutchi Memons, and Sunni Bohras) converted from Hinduism to Islam. For generations, these communities continued to be governed by their ancestral Hindu customary laws of succession and inheritance.
b. To establish uniformity, the Indian Parliament passed The Muslim Personal Law (Shariat) Application Act, 1937. This statute explicitly mandated that Muslim Personal Law applies to Muslims notwithstanding any contrary custom or usage, effectively abolishing most conflicting customary practices. However, in a few highly restricted matters, certain customary options may still persist.
6. Equity, Justice, and Good Conscience
When rigid analogical deductions (Qiyas) fail to deliver a fair result or meet the demands of justice, a jurist is permitted to rely on good conscience and equity. Championed originally by the jurist Abu Hanifa, this principle of judicial equity is technically known in Muslim law as Istihasan (or Juristic Equity).
7. Precedent
Judicial precedents and decisions from higher courts form a vital modern source of Muslim Law. Complex doctrines have been systemized, explained, and adapted through various landmark judgments. Courts frequently evaluate and quote Quranic verses and Hadith to substantiate their rulings. Under the modern Indian legal framework, decisions passed by the Supreme Court and the High Courts are legally binding on lower judiciaries, anchoring precedent firmly as a source of law.
8. Legislation
Legislation is the primary modern mechanism of Muslim law. Since the British colonial era, several statutory laws have been enacted to codify, regulate, and protect specific aspects of Muslim personal law and socio-religious practices. Key historical and contemporary legislations in India include:
a. The Kazis Act, 1880
b. The Guardians and Wards Act, 1890
c. The Mussalman Wakf Validating Act, 1923
d. The Muslim Personal Law (Shariat) Application Act, 1937
e. The Dissolution of Muslim Marriages Act, 1939
g. The Muslim Women (Protection of Rights on Divorce) Act, 1986
III. Schools of Muslim Law
Origin of the Schools
During the lifetime of the Prophet Mohammad, there were no distinct schools of law. Following his demise, a profound constitutional question arose regarding who should succeed him as the spiritual (Imam) and political (Caliph) head of the Muslim community. This leadership dispute split Muslims into two major factions:
- The Sunnis: Supported the democratic method of election. They elected Abu Bakr as their first Caliph.
- The Shias: Favored a hereditary succession model. They asserted that Ali (the Prophet's cousin, son-in-law, and first male disciple) was the divinely ordained successor.
Thus, the foundational schism between Sunni and Shia was originally political rather than purely theological. Over time, these two primary streams branched into multiple distinct sub-schools. In India, the vast majority of Muslims are Sunnis; therefore, Indian courts legally presume a party is Sunni unless proven otherwise.
1. The Sunni School and its Sub-Schools-
The Sunni branch is divided into four classical orthodox schools of jurisprudence (Fiqh):
a) Hanafi School:
Formed by Abu Hanifa in the 8th century AD in the city of Kufa, Iraq, it is frequently referred to as the "Kufa School". It is the most widely followed school among Sunnis in India. Its authoritative compendiums include the Hedaya, Durr-ul-Mukhtar, Radd-ul-Mukhtar, Al-Mukhtar, and the Fatwa-i-Alamgiri (compiled under the patronage of the Mughal Emperor Aurangzeb).
Key Features:
Places less reliance on isolated oral traditions ; leans heavily on deductive analogy (Qiyas) ; fully accepts consensus (Ijma) ; and promotes the application of juristic equity (Istihasan) under exceptional circumstances.
b) Maliki School:
Founded by Malik-ibn-Anas during the 8th century in Medina, Saudi Arabia, giving it the alternative title of the "Medina School". Malik compiled around 300 traditions of the Prophet in his monumental text, Kitab-ul-Muwatta.
Key Features:
Heavily prioritizes the traditions of the Prophet and the customs of Medina to interpret texts. It utilizes Ijma to resolve conflicts between traditions and formulated advanced methods of juristic deduction. It has a large following in North Africa, Morocco, and Spain, but has no traditional followers in India.
c) Shafei School: Established by Muhammad ibn Idris ash-Shafei in the 9th century. Key Features: It developed the doctrine of Qiyas but strictly limited analogical deductions to the direct boundaries of the Quran, Hadith, and Ijma. It accepts only the verified traditions of the Prophet. Authority is derived from texts like Tuhfat-al-Muhtaj and Al-Ghazali’s Al-Wajiz. It is prevalent in Egypt, Saudi Arabia, East Africa, Iraq, Iran, Indonesia, and parts of Southern India.
d) Hanbali School: Formed by Imam Ahmad ibn Hanbal.
Key Features: It is characterized by literal adherence to textual traditions, while strictly limiting the application of Qiyas and Ijma. It serves as the official school of Saudi Arabia and holds vast prominence across Syria and Palestine.
2. The Shia School and its Sub-Schools
The Shia school rejects external traditions not originating from the household of the Prophet (Ahl al-Bayt). It places ultimate authority in the Imam, viewing him as the infallible, final interpreter of divine law. The Shias fractured into sub-sects based on historical disputes regarding succession following the death of their fourth Imam, Ali Zainul Abidin:
a) Zaidya School: Founded by those who accepted Zayd (a son of the fourth Imam, Ali Zainul Abidin) as their rightful fifth Imam. The remaining majority followed Zayd's brother, Muhammad al-Baqir. The Zaidis are predominantly located in Yemen and South Arabia but do not have followers in India.
b) Ismailya School: Following the death of the fifth Imam (Muhammad al-Baqir), his son Ja'far al-Sadiq became the sixth Imam. Upon Ja'far's passing, a dispute arose regarding the seventh Imam. One group pledged allegiance to Ja'far's eldest son, Ismail, giving rise to the "Ismailis" or "Seveners". Their historical lineage remained structurally esoteric/hidden. Adherents are active in Syria, Central Asia, Pakistan, and India (largely represented by the Khoja and Bohra communities).
c) Ithna Ashria School: The largest faction within the Shia school, this group chose to follow Ja'far al-Sadiq’s younger son, Musa al-Kazim, after the sixth Imam's death. They recognize a line of twelve successive Imams, earning them the title of "Twelvers" or "Ithna Ashrias". This school holds absolute majorities in Iran and Iraq, with substantial populations across Lebanon, Pakistan, and India.
IV. Core Differences Between Shia and Sunni Schools
While initially a political schism, the differences between the Shia and Sunni schools evolved to cover structural, doctrinal, and legal variations:
Legal/Doctrinal Aspect | Sunni School | Shia School |
Acceptance of Traditions | Accepts traditions (Hadith) in their entirety, provided they meet canonical verification chains. | Rejects all traditions that do not emanate directly from Ali or his immediate descendants. |
Validity of Jurisprudential Decisions | Recognizes the validity of judicial consensus across broader scholarly lines. | Repudiates the legal validity of all historical decisions not passed down by their own recognized spiritual leaders. |
Nature of Head of Sect | Combines spiritual and state authority in a single elected/established political figure called the Caliph. | Separates political governance from absolute spiritual authority, which is held exclusively by an infallible Imam. |
Temporary Marriage (Muta) | Strictly forbids temporary marriage, declaring it invalid. | Formally recognizes the validity of temporary marriage (Muta). |
Guardianship in Marriage | Recognizes the father and the paternal grandfather how-high-so-ever as valid legal guardians for a minor's marriage. | Restricts absolute legal guardianship for a minor's marriage strictly to the biological father and paternal grandfather. |
Divorce Under Compulsion/Threat | Historically views a pronouncement of divorce under threat, compulsion, or intoxication as legally binding. | Declares any divorce pronounced under compulsion, threat, or intoxication as completely null and void. |
Maternal Custody (Hizanat) | The mother is entitled to the custody of a male child up to 7 years of age, and a female child until she attains puberty. | The mother is entitled to custody of a male child only up to 2 years of age, and a female child up to 7 years of age. |
Classes of Legal Heirs | Recognizes three classes of heirs: Sharers, Residuaries, and Distant Kindred. | Recognizes only two primary classes of heirs: Sharers and Residuaries. |
V. Conclusion
Ultimately, the divergence between the Sunni and Shia schools remains fundamentally historical and structural rather than a disagreement on core spiritual pillars. Both theological divisions share complete consensus on the primary fundamentals: they revere the Prophethood of Mohammad, look to the Holy Quran as their ultimate, immutable spiritual book, draw from shared primary legal mechanisms, and trace their legal legitimacy to the divine message brought by the Prophet.
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