Sources of Muslim Law

Muslim law has four primary sources in fixed order of authority, the Quran, Sunna, Ijma and Qiyas, supplemented by secondary sources such as istihsan, istislah, urf, judicial decisions and legislation; the hierarchy is strict, so a later source can never override an earlier one.

The sources of Muslim law fall into primary sources, which are the four recognised roots of the law, and secondary or supplementary sources, which fill gaps and adapt the law. The hierarchy among the primary sources is strict: each is subordinate to those above it, and no lower source can validate a rule inconsistent with a higher one. Getting the hierarchy right, and being able to say what follows from it, is the whole of a good answer on this topic.

Legal Framework

Source	Arabic term	Position	Function
The Quran	Al Quran	Primary, highest	The revealed word of God; roughly 200 of some 6,000 verses are legal, of which about 80 concern family law
Practice of the Prophet	Sunna, evidenced by Hadith	Primary, second	Explains, qualifies and supplements the Quran; classified by mode as sunnat ul qaul, ul fail and ul taqrir
Consensus of jurists	Ijma	Primary, third	Agreement of the qualified jurists (mujtahids) of an age on a question not resolved by the first two
Analogical deduction	Qiyas	Primary, fourth	Extension of an established rule to a new case sharing the same effective cause (illat)
Equity or juristic preference	Istihsan	Secondary	Departure from a strict analogy where it would cause hardship or injustice
Public interest	Istislah or maslaha	Secondary	Rule adopted because it serves the general welfare
Custom	Urf or taamul	Secondary, now largely displaced in India by S.2 of the 1937 Act	Local usage, valid only where not contrary to the Shariah
Judicial decision and legislation		Modern Indian sources	Precedent of Indian courts and Indian statutes affecting Muslim personal law

The Four Primary Sources

1. The Quran

The Quran is regarded as the literal word of God, revealed to the Prophet in Arabic over roughly 22 years, and is therefore of unquestionable authority. It is not a code. Of some 6,000 verses only about 200 deal with legal matters, and of those roughly 80 concern family relations: marriage, dower, divorce, maintenance and inheritance.

Why the Quran's incompleteness as a code is doctrinally decisive: Because it does not attempt exhaustive regulation, the other three sources are logically necessary rather than merely convenient. The Sunna exists because the Quranic verses need explanation and application. Ijma and qiyas exist because new questions arise on which neither the Quran nor the Sunna speaks. So the hierarchy is not an arbitrary ranking; it is the structure that a non-exhaustive revealed text requires.

A second consequence follows from the Quran's supremacy, and it has become practically important. Because no lower source can validate a rule inconsistent with the Quran, a practice long accepted by juristic consensus can still be attacked on the ground that it contradicts the Quran. That is precisely the route Kurian Joseph J took in Shayara Bano: he held talaq-e-biddat contrary to the basic tenets of the Quran and therefore in violation of the Shariat itself, without needing to rely on Art.14 at all.

2. The Sunna

The Sunna is the practice of the Prophet, evidenced by Hadith, reports of what he said, did or tacitly approved. Its authority rests on the Quranic injunction to obey the Prophet.

Classification by mode	Meaning
Sunnat ul qaul	What the Prophet said
Sunnat ul fail	What the Prophet did
Sunnat ul taqrir	What the Prophet permitted by his silence or tacit approval

Hadith are also classified by the reliability of their chain of transmission (isnad), the standard division being into mutawatir (of universal and uninterrupted transmission, hence of the highest authority), mashhur (widely but not universally reported) and ahad (reported through a single or limited chain, hence weakest).

Why the classification by transmission matters: The strength of a Hadith determines what it can be used for. A mutawatir tradition can establish a binding rule. An ahad tradition, standing alone, generally cannot displace a rule founded on stronger authority. This is the mechanism by which apparently authoritative statements attributed to the Prophet are weighed against each other, and it is what makes possible arguments that a widely followed practice rests on weak textual support.

3. Ijma

Ijma is the agreement of the qualified jurists (mujtahids) of a particular age on a question of law not settled by the Quran or Sunna. It is not the consensus of the community at large, and it is not the agreement of laymen.

Kind of ijma	Basis
Ijma of the Companions	Consensus of the Prophet's Companions; regarded as of the highest authority and not open to reversal
Ijma of the jurists	Consensus of the mujtahids of a later age; the ordinary working form
Ijma of the people	Consensus of the general body of Muslims; of least authority and of little practical legal effect

Why ijma is the structurally awkward source: Its authority depends on there being identifiable, qualified jurists whose agreement can be ascertained. Once taqlid took hold and independent juristic reasoning was regarded as closed, the conditions for forming a fresh ijma effectively ceased to exist. So the source through which the classical law had adapted itself became unavailable at exactly the point when adaptation was most needed. This is the internal reason why reform of Muslim personal law in India has proceeded through legislation and judicial decision.

4. Qiyas

Qiyas is analogical deduction: the extension of a rule established by the Quran, Sunna or ijma to a new case which shares the same effective cause (illat) as the original case. It has four elements: the original case (asl), the new case (far), the effective cause common to both (illat), and the rule of law in the original case (hukm).

Why qiyas is the weakest primary source and is confined: Qiyas produces no new law of its own force. It merely applies existing law to a fresh situation, so its validity depends entirely on the correctness of the jurist's identification of the illat. Because the illat is a matter of human judgment, qiyas is regarded as fallible and cannot override any of the three higher sources. Shia law rejects qiyas in this form, treating reasoning (aql) and the authority of the Imams as the appropriate substitutes.

**Valia Peedikakkandi Katheessa Umma v Pathakkalan Narayanath Kunhamu (1964)** Supreme Court of India

Facts: A Hanafi husband gifted his properties, including immovables, to his wife by a registered deed when she was fifteen years and nine months old. Her father and paternal grandfather were both dead and neither had left an executor, so there was no guardian of her property in existence. The deed was handed to her mother, who accepted the gift on her behalf and took possession. The husband and then the wife both died without issue, and the husband's brother sued for partition, arguing the gift was void because a mother is not a legal guardian of a minor's property under Muhammadan law.

Issue: Could a valid gift be made to a minor wife where acceptance and delivery were to her mother rather than to a recognised guardian of her property?

Held: The gift was upheld. Reasoning expressly by analogy (qiyas) and on istihsan and istislah, and working from the Hedaya, the Radd ul Mukhtar, the Fatawa i Alamgiri and other classical texts, Hidayatullah J held that the strict rule requiring delivery to one of the four recognised guardians of property is not a condition of validity in two situations: a gift by a husband to his wife, and a gift to a minor who has no guardian of the property in existence.

Relevance: The clearest modern Indian demonstration of an Indian court using the classical methodology, and of secondary sources doing real work. Note carefully that the Court also held that registration does not cure absence of delivery of possession; the gift succeeded because handing the deed to the person in charge of a minor who had attained discretion amounted to constructive delivery, not because the deed was registered.

Secondary and Supplementary Sources

Istihsan (juristic preference or equity). Where the result of a strict analogy would be harsh or unjust, a jurist may depart from it in favour of a preferable rule. The function is corrective, and it operates within the system rather than against it.

Istislah or maslaha (public interest). A rule may be adopted because it serves the general welfare, where no text forbids it.

Urf or taamul (custom). Custom was historically an important supplementary source and remains relevant where the Shariah is silent, but it can never prevail against a clear rule of the Shariah. In India custom has been very largely displaced: S.2 of the Muslim Personal Law (Shariat) Application Act, 1937 applies Muslim personal law in the enumerated matters "notwithstanding any custom or usage to the contrary".

Why the 1937 Act's treatment of custom is examinable in its own right: Before 1937, communities that had by custom excluded daughters from inheritance, or adopted rules of tenure inconsistent with the Shariah, could rely on that custom in litigation. S.2 removed that possibility in the enumerated matters. The effect was to make the law more uniform and, in inheritance, generally more favourable to women. But note the limits: agricultural land was excluded from the enumerated list, so customary tenures survived in several States, and it is precisely the inheritance provisions that are now under constitutional challenge as discriminatory.

Judicial decision. Decisions of the Indian courts, and formerly of the Privy Council, are a source in the practical sense that they state authoritatively what Muslim personal law is for Indian purposes. Courts have on occasion declined to follow classical opinion, and the resulting rule is what an Indian court will apply.

Legislation. A series of Indian statutes has modified Muslim personal law directly: the Mussalman Wakf Validating Act 1913 (reversing Abul Fata), the Shariat Act 1937, the Dissolution of Muslim Marriages Act 1939, the Muslim Women (Protection of Rights on Divorce) Act 1986, the Muslim Women (Protection of Rights on Marriage) Act 2019, and the Waqf (Amendment) Act 2025.

Ranking legislation and judicial decision among the sources

Textbooks differ on whether Indian legislation and judicial precedent should be listed as "sources of Muslim law" at all. The tidier analysis, and the one to state if asked, is this: in Islamic legal theory they are not sources, because the roots of the law are the four primary sources and the classical secondary ones. In an Indian court they are decisive, because a judge applies the statute and the binding precedent. Distinguish the two levels expressly rather than simply adding legislation to a list of six or seven sources, which obscures the point.

Illustrations

Hierarchy applied. A practice is supported by long juristic consensus but is said to contradict a Quranic verse. The consensus must yield, because ijma is subordinate to the Quran. This is the reasoning of Kurian Joseph J in Shayara Bano.
Qiyas at work. The Quran prohibits khamr, wine. A jurist identifies the illat as intoxication and extends the prohibition by analogy to other intoxicants not known in seventh century Arabia. The new case (far) shares the illat of the original case (asl), so the rule (hukm) extends.
Istihsan correcting analogy. Strict analogy would require delivery of possession to one of the four recognised guardians of a minor's property before a gift to a minor is complete. Where no such guardian exists, that requirement would defeat every gift to such a minor. In Katheessa Umma the Supreme Court, reasoning on istihsan and istislah, relaxed the requirement.
Custom displaced. A community has by custom applied a rule of primogeniture to its property. After 1937, in the matters enumerated in S.2, the custom cannot be relied on and the Quranic shares apply. But if the property is agricultural land, the exclusion from S.2 may leave the custom operative depending on the State law.

Recall Check

List the four primary sources in order, and state the consequence of the hierarchy being strict.
Distinguish mutawatir, mashhur and ahad Hadith, and explain why the distinction has practical effect.
Why did ijma cease to function as a living source, and what filled the gap in India?

Key Cases

Valia Peedikakkandi Katheessa Umma v Pathakkalan Narayanath Kunhamu (1964) Katheessa Umma v Narayanath Kunhamu 1964
Issue: Whether a gift to a minor wife, accepted by her mother where no guardian of her property existed, was valid.
Rule: Reasoning by qiyas and on istihsan and istislah from the classical texts, the strict requirement of delivery to a recognised guardian of property is relaxed in two cases: a gift by a husband to his wife, and a gift to a minor having no guardian of the property in existence.
Held: The gift was upheld. Registration does not cure absence of delivery; here there was constructive delivery, the minor having attained discretion and the deed having been handed to the person in charge of her.

Shayara Bano v Union of India (2017) Shayara Bano v Union of India 2017
Issue: Whether talaq-e-biddat is valid, and whether S.2 of the 1937 Act is unconstitutional to the extent it recognises it.
Rule: Relevant here for the source hierarchy. Kurian Joseph J held the practice contrary to the basic tenets of the Quran and therefore in violation of the Shariat itself, illustrating that no lower source can sustain a rule inconsistent with the Quran.
Held: Set aside by a majority of three to two. Nariman and Lalit JJ struck down S.2 to that extent under Art.13(1) and Art.14; Kurian Joseph J reached the same result on the Quranic ground.

Distinctions

Basis	Ijma	Qiyas
Nature	Agreement of qualified jurists	Analogical reasoning by a jurist
Produces	A binding rule of its own force	No new rule, only the extension of an existing one
Who participates	The body of mujtahids of an age collectively	An individual jurist
Accepted by Shia law	Yes, though restricted to consensus including an Imam	No, qiyas in the Sunni sense is rejected
Rank	Third	Fourth, the weakest primary source

Basis	Istihsan	Istislah
Trigger	A strict analogy would produce hardship or injustice	A rule is needed and the general welfare indicates one
Orientation	Corrective of qiyas	Constructive, filling a gap
Rough English analogue	Equity	Public policy

Basis	Primary sources	Secondary sources
Number and identity	Four: Quran, Sunna, Ijma, Qiyas	Several, including istihsan, istislah, urf, and in India precedent and legislation
Authority	Roots of the law (usul)	Supplementary, operating where the primary sources leave room
Can override a primary source	Not applicable	No

Flashcards

Name the four primary sources of Muslim law in order of authority.

The Quran, the Sunna, Ijma and Qiyas.

Roughly how much of the Quran is legal in content, and how much of that concerns family law?

About 200 of some 6,000 verses deal with legal matters, of which roughly 80 concern family relations.

What are the three classifications of Sunna by mode?

Sunnat ul qaul (what the Prophet said), sunnat ul fail (what he did), and sunnat ul taqrir (what he approved by silence).

What are mutawatir, mashhur and ahad Hadith?

Classifications by strength of transmission: mutawatir is of universal and uninterrupted transmission and highest authority, mashhur is widely but not universally reported, and ahad rests on a single or limited chain and is weakest.

Whose agreement constitutes ijma?

The qualified jurists, the mujtahids, of a particular age. Not the community at large.

Name the four elements of qiyas.

Asl (the original case), far (the new case), illat (the effective cause common to both), and hukm (the rule of law in the original case).

Does Shia law accept qiyas?

No. It rejects qiyas in the Sunni sense, relying instead on the authority of the Imams and on aql, reason.

Distinguish istihsan from istislah.

Istihsan is departure from a strict analogy to avoid hardship or injustice, corrective in function. Istislah is the adoption of a rule because it serves the general welfare, constructive in function.

What is the position of custom in Indian Muslim personal law after 1937?

Largely displaced. S.2 of the Muslim Personal Law (Shariat) Application Act, 1937 applies Muslim personal law in the enumerated matters notwithstanding any custom or usage to the contrary. Agricultural land was excluded from the list.

Which case shows an Indian court reasoning by qiyas, istihsan and istislah from the classical texts?

Valia Peedikakkandi Katheessa Umma v Pathakkalan Narayanath Kunhamu (1964), relaxing the requirement of delivery to a recognised guardian of a minor's property.

Exam Scenario

Problem: "Explain the sources of Muslim law. Is the hierarchy among them of any practical consequence in an Indian court today?"

Step 1: Set out the sources in order, with function and Shia position

Source	Function	Shia divergence
1. The Quran	The revealed word of God	None
2. The Sunna	Explains and supplements the Quran	None
3. Ijma	Agreement of the mujtahids of an age	Restricted to a consensus including an Imam
4. Qiyas	Extension of a rule to a case sharing the illat	Rejected in the Sunni sense

Add the secondary sources briefly: istihsan, istislah, urf.

Step 2: Take the second limb head on, and answer it in two directions

The hierarchy has real consequence, and Shayara Bano proves it. Kurian Joseph J invalidated a practice supported by centuries of juristic acceptance on the ground that it contradicted the Quran, which is possible only because ijma is subordinate to the Quran.
It is consequential in the opposite direction too. Qiyas is the weakest source and depends on human identification of the illat, so secondary sources such as istihsan can legitimately soften it, as Katheessa Umma shows.

Step 3: Name what an Indian court actually applies first

In an Indian court the immediately operative sources are the statute and the binding precedent. A judge deciding a dower or waqf question today applies the Shariat Act 1937, the Waqf Act as amended in 2025, the Dissolution of Muslim Marriages Act 1939 and the decisions of the Supreme Court.

The classical hierarchy governs the content of the personal law those statutes attract, and it governs argument about what that content is, but it does not displace the statute.

Step 4: Separate the two senses of "source"

Distinguish sources in Islamic legal theory from sources of the law an Indian court will apply, and say which sense you are using.

The trap in this problem

The second limb is where the marks are. Address it directly rather than treating it as decoration.

Conclusion. The hierarchy matters most as an argumentative resource: it allows a litigant to say that a long accepted practice is nonetheless bad law. That is the move that succeeded in 2017 and is being attempted again in the pending challenge to the 1937 Act.