Sources of Muslim Law (Secondary sources)

SECONDARY SOURCES OF MUSLIM LAW 


The secondary sources of Muslim law can be classified into 4 categories. They are as follows-

1. Urf or Custom
2. Precedent
3. Equity, justice and good conscience
4. Legislation


Sources of Muslim Law (Secondary sources)

1. Urf or Custom-

i) Previously urf or custom was not regarded as a source of Muslim law. Though it has been referred to as a supplementary source of law.

ii) Custom means a rule or habit which acquires the force of law in a particular caste, community or a family. 

iii) The requirements of a valid custom are as follows-
    a) General prevalence in the country is necessary.
    b) It must be territorial.
    c) It should be immemorial i.e. beyond human memory.
    d) Custom must be ancient and invariable.
    e) It must not be opposed to public policy.

iv) There are a few customary laws found to prevail in case of a Muslim in the following matters-
    a) Agricultural land.
    b) Testamentary succession in certain communities.
    c) Charity, other than wakfs.


2. Precedent-

i) Precedent or Judicial decision means earlier decisions or decided cases.

ii) These include the decisions of the Privy council, the Supreme court, as well as of the High courts of India. 

iii) A precedent is not merely evidence of law but a source of it and the courts are bound to follow the precedent.

iv) The decisions of the Supreme court are binding upon all the courts of India and the decisions of High courts are binding upon the subordinate courts.

3. Legislation-

i) The Muslims in India is governed by the various legislation passed either by the parliament or the State Legislature.

ii) In India, the following are the instances of the legislation-
   a) The Shariat Act, 1937.
   b) The Indian Contract Act, 1872.
   c) The Child Marriage Restraint Act, 1929.
   d) The Dissolution of Muslim Marriage Act, 1939.


4. Equity, Justice, and Good Conscience-

i) Under Muslim law principles of justice, equity and good conscience can also be regarded as one of the sources.

ii) If there is no law on a particular matter then the matter must be decided by the jurists.

iii) The jurists must be learned and must have the skill of reasoning.

iv) The jurists must apply the principle of natural justice.

v) In Muslim law, Istihsan, Istislah, and Istidlal theses three terms are used to define equity, justice, and good conscience.

vi) Istihsan means " juristic equity". Istislah means "public good" and Istidlal means " juristic interpretation".

These are the secondary or modern sources of Muslim law.

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