DISTINGUISHED FEATURES OF MUSLIM LAW

The concept of Islamic Law or Muslim Law has been embedded with the following distinguished features:-

(1) Law based on religion- The Divine Law.

Like, Hindus, Islamic Law is also of divine origin. In Govind  Doyal v. Inayatulla, Justice Mahmood remarked:

"It is to be remembered that Hindu and Mohammedan Law are so intimately connected with religion that they cannot readily be dissevered from it"

Hindu Law is based on Vedas i.e., Sruti which denotes ' that which is heard' and Smriti which means' that which is remembered by the sages' Similarly, Muslim Law is based on Islam, religion taught by the Prophet Mohammad that is why the law related to Muslim has 'been denominated with reference to the religion as well as its founder e.g. Islamic Law, Muslim Law or Mohammadan Law.

The Basic principles of Islam are as under:-

1. Belief in the existence of God- The dogma of 'Imam'
2. Belief in the Unity of God-The dogma of 'Tawhid'
3. Belief in Mohammad as the Prophet-The dogma of 'result'
4. Belief in Akhirat-The dogma of  'Qayamat'
5. Belief in Brotherhood- The dogma of 'equality'

From these fundamental tenets of Islam, flows the Islamic notion of law. According to Islam, God ahs the primary authority to enact laws. He promulgates his laws through  Prophets. Messengers or Rasuls, such Rasul was the Prophet Mohammad. There are direct and indirect revelations of God (contained in the Quran and the Sunna respectively ) through the Prophet in matters of religion and laws. So, in Islam nobody other than the God, can have legislative power, God is the sovereign and next to God, the sovereign powers aside in the people. 

Joseph Schacht remarsk:

" The sacred law of Islam is an all embracing body of religious duties, the totality of Allah's Commands that regulate the life of every Muslim in all its aspects; it comprises on an equal footing, ordinance regarding worship and ritual, as well as political and (in the narrow sense) legal rules."

(2) Law based on shariat

Shariah or Shariat as is pronounced in India, means commands ( Ahkam) of God, a code governing all human actions and beliefs. For all effects of individual and collective actions of humans, causes are found in Shariat. All moral, legal ethical, theological philosophical and political problems are dealt in Shariat and as such solutions of any problem are religious in nature. 

The basic  source of Shariat is Quran which is supplemented by Sunna and Ahadees. The followers must believe these to be of divine origin. Quran and Islam, though, don not claim these guiding principles to have been revealed for the first time. Quran itself recognises previous Shariats right from Adam to Prophet of Islam. Quran says:

" The same religion we have  established for you as that which we had enjoined to Adam, Noah, Abraham, Ismail, Issac, Jacob. The  Tribes, Moses, Job, Jonah, Aaran, Solomon, David etc. Ye should remain steadfast in religion and make no divisions therein".

(Quran : Sura 4-A 163;S 23-A23; S42-A13 )

"....................To each among you have We prescribed a law and open way."

(Quran-Surra 41-a 43)

"None of our revelations do we abrogate or cause to be forgotten but we substitue something better or similar"

( Quran-Sura 2-A106.)

Some of the descriptions in Quran differ from that of Torah and Bible. These differences are due to man-made alterations in Torah which were incorporated in Bible as it's part ( Old Testament) by "Reformers"  between 1st and 3rd century B.C. In Bible:- "Particulars books as Esther, or Daniel or Ecclesiastes were only added in the collection subsequently ". (Ryles cannon of Old Testament). Moses had instructed his people to follow laws and laws relating to marriage etc. etc. ( Shariat-e-Moosa). Torah was revealed around 1300 B.C. and the text of Old Testament in present form was completed in 2nd  century A.D. "According to Jewish tradition there are eighteen passages in which the older scribes deliberately altered the text on the ground that the language employed was either irrelevant or liable to misconception."

Thomas  Hobbes started critical studies of Bible and observed, "who were the original writers of the several books of Holy Scripture has not been made evident by any sufficient testimony or other history".

Jesus knew about all these alterations in Sharia-e-Moosa and had to observe in New Testament:

"...Pharisees sit in Moses seat: all, therefore, whatsoever they did you observe, that observe and do; but don not ye alter their works; for they say and do not."

(New Testament-(Mathew) Chap 23-lines 2 and 3) 

Above discussion would show two important points-firstly  Quran and Islam has prescribed a Shariat which was also prescribed by previous Prophets but with some 'reforms', and secondly that previous Shariats could not be fully understood from their Scriptures because they had been subjected to corruptions and man-made alterations. On the contrary there is not an iota of evidence that Quran was subjected to such a process, therefore Quranic text is pure and uncorrupted.

Thus Pre-Isamic customs and usages in Arabia could not be attributed strictly and necessarily to be derived from those previous original shariats but may have independent origin. It is also certain that principles of old Shriats have been incorporated in Islamic Shariat.

It is powerfully argued that Roman, Greek jor pre Islamic customs and usages ave been 'adopted' Islam or Prophet, thus rules of Muslim Law must be understood in this light."None of our revelations...."(Sura 2-A106 Supra) is idnication of Divine intention to incorporate those principles in every subsequent Shariat. As Quran is the last of them all, the principles enshrined therein should be taken to be a standard.

Islamic Shariat devised two sets of basic principles. First set is called Usul-e-Deen and the second Furu-e-Deen. The first is related to belief and the second set governs general actions and obligations.The literal meaning of the term 'Shariat' is 'a read to the watering place, the path to be followed. In technical terms, it denotes the conon law of Islam, the totality of Allah's commandments ( Hukm). It is a divine revelation. The 'Shariat' is a code of duties and obligations of men, giving secondary place to the rights of men. According to the 'Shariat' religious commandment ( Hukm) of Allah are of five types:

1. Faraz- Five daily prayers ( Namaz) - One must do strictly.
2. Haram- Drinking wine- One must forbade strictly
3. Mandub/Additional Prayers on the id- One may do.
4. Makrum- Eating certain kinds of fist prohibited-One may refrain from.
5. Jaiz or Mubah-Thousands of Jaiz things, such as travelling by air-Shariat is indifferent towards it. 

The Islamic Law is based on above given five morals or Akham of Allah. Sunni Muslims profess three principles as Usul-e-Deen namely (i) Wahdat ( Singular entity of God) (ii) Risalat ( Prophethood-God sent Prphets numbering one lakh and twenty four thousand, last being Prophet of Islam) (iii)  Qayamat ( Doomsday)-A day of judgment when every individual would be rewarded or punished for waht he had done in this world. 

Shia Muslims consider two more principles in addition to above three. At number two ( after Wahdat) they place Adalat i.e., that God is just; and before the last ( Qayamat)), they place Imamat-they believe that after Prophet, God had appointed Imams. For this reason sometimes they are called "twelve".

The next step is action ( Amal) the paralled word used in Hindu religion is Karma. These actions are defined under Furu-e-Deen and  they are-(1) Namaz ( Prayers), (2) Roza ( fasting) , (3) haj ( Pilgrimage) (4) Zakat ( departing a certain amount from individual's income) and (5) Jihad ( holy war for the cause of God), Shias include Khums also in the list ( another portion of income and savings, besideds Zakat which is trictly to be given to Imams). As in present itmes there is no one to receive this amount, hence jurists have deferred this item.

These two sets of principles are foundation of Islamic Shariat. Unless one believes ( Eeman) in first set of principles, he cannot come in Islamic fold. Besides these jprinciples, all actions of human are included in Islamic Shariat, whether religious, civil or criminal. Different rules are framed for ascertaining Halal and Haram or good and evil. These may be actions concerning material things. Marriage with a foster sister is Haram as is pork or wine. In between these two extremes there is a middle position called Mustahab and Makruh. Mustahab is related generally to actions and Makruh to a material thing, it is advisable to do things which are Mustahab because they are not Farz or Wajib ( compulsory as daily prayer)  but if one fails to do such acts he commits no sin or wrong. Again, it was advisable to refrain from taking Makruhs things in normal circumstances such as horse meat or certain kinds of fist. ALl acts and things which are not Haram or Makruh are Jaiz. Then there is concept of Pak and Najis. The Islamic Shariat in this way controls moral, ethical, social, individual, religious, legal and even political life of a believer and this control is total. Rules of Islamic jurisprudence are part of Shariat, which are divided in civil and criminal departments like any other law.