Sources of Islamic Law
What are the sources of Islamic Law?
SYNOPSIS
1:-INTRODUCTIOn
2:-CATEGORIES OF THE SOURCES OF ISLAMIC
LAW
(1) PRIMARY SOURCES
(II)SECONDARY SOURCES
(III) CUSTOM
3:-(1)PRIMARY SOURCES
I. THE HOLY QURAN
II. THE SUNNAH
III.IJMA
IV. QIYAS
(2)SECONDARY SOURCES
I. ISTEHSAN
II. ISTISLAH
(i) Condition to use Istislah
III.ISTIDLAL
(i) Kinds of istidlal
IV.IJTEHAD
V.TAQLEED
(III) CUSTOM CONCLUSION
INTRODUCTION:
The primary sources of Islamic law are ,
•Quran
•,the Sunnah
•,the Ijma
and
•Qiyas.
The secondary sources are
Istehsan, Istislah, Istidlal, Ijtehad and Taqlid.
Custom makes a midway between the
primary and secondary sources of Islamic Law and is regarded as an important source of
Islamic law. The sources of Islamic law are discussed in detail below.
2.CATEGORIES OF THE SOURCES OF ISLAMIC LAW:
There are three categories of the sources of Islamic Law.
(1) PRIMARY SOURCES:
(i) The Holy Quran.
(ii) The Sunnah.
(iii) The Ijma.
(iv) The Qiyas.
(II) SECONDARY SOURCES:
(1) Istehsan.
(ii)Istislah.
(iii) Istidlal.
(iv) Ijtehad.
(v) Taqleed.
(III) CUSTOM:
(I)PRIMARY SOURCES:Primary sources are those sources that are unanimously agreed upon by the four Sunni Schools. These are:
I.THE HOLY QURAN:
The Quran is the first source of Islamic Law in point of time as well as in point of importance.
The various Quranic verses expressly indicate that it is the basic source of Islamic Law. Quran is
neither a legal code in the modern sense nor it is (compendium of ethics. It is a guidance. The
legislative part of the Quran is a model illustration for future legislation and does not constitute a legal code by itself. It gives Islamic ideology in a general form suited to the changing
circumstances in all ages. Islamic law under went a long process of evolution. The interpretation of Quran is now very much developed in comparison to earlier stages of Islam. The legal rules not derived from the specific verses of the Quran in early were sought to be drawn in the later stage. This was a continuous activity. The Quran is full of illustration and these illustrations have
become the basis of Islamic Law.
sorts of legislations
Holy Quran is the book of God and contains the direct revelations from Almighty.
As there are always two sorts of legislations i.e.
1:- formulation
and
2:- interpretative,
Cross-reference
The fundamental laws of Islam are contained in Quran and this is the primary source of law of Muslims. Next comes the Sunnah of the Holy Prophet (PBHU) and thereafter in sequence is Ijtehad and Ijma.
(PLD 1967 SC 97)
The Ahkaams in Quran are of three types
a) relating to beliefs;
b) relating to morality;
c) relating to legal rules.
Modes of Qur'anic legislation
Quran also discusses the three kinds of modes of legislation namely...
Positive Mandatory legislation i.e. Muslims are bound to do those acts.
Negative Mandatory legislation i.e. Muslims are forbidden to do those acts.
Discretionary legislation. I.e. Muslims are free to opt, having discretion in certain matters.
Qualities of Quranic legislation
Quranic legislations has two types of qualities
(i) Qata’i ; very clear
(ii) Zanni; open to interpretation and Ijtihad.
Kinds of Surah :-
macci Surah:-. They provide guidance to an individual soul. On the other hand,
Madni Surah
have laws relating to civil, criminal, social and political problems of a society.
THE SUNNAH:
This is another important source of Islamic Law. It means exemplery conduct of some person.
. It includes Hadiths and Sunnah as well.
Hadith means saying of Prophet (PBUH)
and Sunnah means path or manner of life of Holy Prophet (PBUH).
Sunnah is a wider term having three elements while Hadith is one out of these three.
According to Islamic Jurisprudence
"Sunnah" refers to the model behaviour
of Prophet.
It is an ideal for the Muslim Community. It is the Sunnah that gives the concrete shape to the Quranic teachings. The decisions
taken by the Prophet were elevated by God to such a degree that their
acceptance and willing submission to them are the fundamentals of
the faith.
Cross -Refrences
Holy Quran says..
". ,For you the life of Holy Prophet (PBUH) has got model behaviour”
( Surah Ahzab)
“Literally, Sunnah means a clear path or a beaten track but it has also been used to imply normative practice, or an established course of conduct. It may be a good example or a bad, and it may be set by an individual, a sect or a community”
(Principles of Islamic Jurisprudence by M.H Kamali)
Classification of Sunnah
Sunnah is classified into
• Qolia,
•Failia and
•Taqreeria
Classification of Hadith
Hadith is classified into many like
• Mutawatir,
•Ahad,
•Mursal etc
Sunnah can be classified in different heads. Such as,
According to legal force
According to number of narrators
According to form
According to mode of narration
According to authenticity
To conclude
The Sunnah is a habit practiced by the Prophet in terms of words, actions or decisions or the Prophet’s approval of what his companions did.
Various Hadiths or Sunnahs
Hadiths or sunnahs are seen in terms of their shape, including:
Qauliyah is all the words of the Prophet
Fi’liyah is all that the Prophet did
Taqririyah is the designation, approval and confession of the Prophet
Hadith or sunnah in terms of quality, including:
Sahiah/authentic Hadith
The traces of a true and healthy hadith without any doubt or defect.
Hasan, that is a good hadith, fulfills the requirements as a saheeh hadith, the difference lies only in terms of its haughtiness (strong memorization). The authentic hadith is more perfect than hasan’s hadith.
Dhaif is a weak hadith.
Maudhu is a false or fabricated hadith.
3.IJMA (CONSENSUS OF OPINION)
Ijma or consensus is the third source of Islamic jurisprudence. From dogma to
norms to laws, ijma is recognized as a significant concept in Islamic discourse and
socio-religious unity.
THE CONCEPT
Ijma is the verbal noun of the Arabic word Ajma'a which has two meanings; to
determine and to agree upon something. Ijma is considered the third proof of
Shariah after the Quran and the Sunnah. As a proof of Shariah, it is basically a
rational proof. An Ijtihad or an Interpretation of one or a few scholars when
becomes universal, becomes Ijma.
DEFINING IJMA
The classical definition of Ijma, as laid down by Ulama of Usul, is categorical on the
point that the universal consensus of the scholars of the Muslim community as a
whole can be regarded as conclusive Ijma. Only such Ijma are considered binding by
early Usuliun (Usul scholars).
QURANIC SUPPORT:
whoever splits with the Messenger after guidance has become clear to him and
then follows other than the way of the believers, we shall leave him in the path he
has chosen and enter him into Hell..=
The question therefore remains – who are these believers? (debate of Ijma)
REFERENCE FROM HADITH
The hadith of Muhammad (pbuh) which states that "My ummah will never agree
upon an error" is often cited as a proof for the validity of ijmā'. Sunni Muslims regard
ijmā' as the third fundamental source of Sharia law, just after the divine revelation
of the Qur'an, and the prophetic practice known as Sunnah
Broad division of IJMA
The names of two kinds of consensus are:
• ijma al-ummah - a whole community consensus.
• ijma al-aimmah - a consensus by religious authorities.
Difference of Opinions of School of Thought on IJMA.
Malik ibn Anas held the view that the religiously binding consensus was only the
consensus of Muhammad's companions and the direct successors of those
companions in the city of Medina.
Abu Hanifa, Ahmad bin Hanbal and Dawud al-Zahiri, on the other hand, considered
this consensus to only include the companions of the prophet Muhammad, excluding
all generations which followed them, in Medina and elsewhere.
To conclude.
performance of Ijma can only be possible in modern
times through decisions taken by legislative assemblies – However these too will
remain binding until revoked and nor are they universally accepted or agreed upon.
4:-QIYAS (ANALOGY)
In Islamic jurisprudence, qiyās is the process of deductive analogy in which the
teachings of the Hadith are compared and contrasted with those of the Qur'an, in
order to apply a known injunction (nass) to a new circumstance and create a new
injunction. Here the ruling of the Sunnah and the Qur'an may be used as a means to
solve or provide a response to a new problem that may arise. This, however, is only
the case providing that the set precedent or paradigm and the new problem that has
come about will share operative causes (ʿillah) (The ʿillah is the specific set of
circumstances that trigger a certain law into action۔
Literally Qiyas means measuring or ascertaining the length, weight or quality of
something.
In the language of Usul, Qiyas is the extension of a Shariah ruling from
•an original case (Asl)
•to a new case (Far')
•because the new case has the same effective
cause (Illah) as the original case.
The original case is regulated by a text of the the new case. The emphasis of Qiyas is
identification of a common cause between the original and new case. Jurists do not
consider law derived through Qiyas as a new law.
Qiyas does not give rise to certainty.
Qiyas is therefore speculative.
Law derived through Qiyas can not be of same authority as that of textual ruling (of Quran or
Sunnah).
There can be difference of opinion on the law derived through Qiyas, as is
the case with almost all Ijtihadi law.
The essential requirement of Qiyas are
•Asl (original case, on which a
ruling has been given),
•Hukm (ruling on the original),
•Illah (cause of ruling in the
original case)
•and Far' (new case on which ruling is to be given).
Example
In the case of prohibition of wine drinking (Surah Maida : 90), if it is to be extended to narcotic drugs, the requirement of analogy would be fulfilled in the following manner.
Asl (original case) Far' (new case) Illah (cause of ruling) Hukm (ruling)
Wine drinking - Taking narcotic drugs - Intoxicating Effects - Prohibition
Hadith: if ones nails coated with flour – wudhu is incomplete- This is Asl –
nailpolish is Far – since both prevent water from reaching the nails (illa). Jurists
deduce wudhu over nailpolish not acceptable.
Hadith mentions Khamr (date wine) as Haram – deduction – Brandy, whiskey etc.
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