What Are the Sources of Islamic/Muslim Law? A Complete Guide
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Introduction
The sources of islamic law may be categorized as under:
Revealed and Non-Revealed.
The Quran and Sunnah are the different forms of revelation i.e. Wahi-i-jali {manifest/direct/zaahir} and wahi-i-khafi {internal/indirect/baatin} respectively. Thus, only Quran and hadith/sunnah are the revealed source of shariah. All other sources are non-revealed as they possess an element of human intervention{aql}, consensus, reasoning, thinking, interpretation and analogy. However non-revealed sources work within the framework laid down by the revealed sources.
1.Primary and Secondary
It is important to note
down that in the development of Islamic jurisprudence {usul-ul-fiqh} Quran,
sunnah of the Prophet, Hadith of the Prophet{saw}, Ijma of the companions, ijma
of the successors of the companions and the ijma of the successors of the
successors of the companions are considered as primary source of law, while as
the other sources and techniques are considered as the secondary sources e.g.
Qiyas, Ijtihad, istihsan, al masalih al mursalah, customs etc.
Sinces
Muslim {family} law is a part of Islamic law, therefore there is no difference
in the sources. The sources of the Islamic/muslim law may be discussed as
under:
Primary source
It
contains
- · Quran: the word of Allah revealed to Prophet{saw}
- Sunnah of prophet: the teachings and practices of the prophet{saw}
- · Hadith of prophet: sayings and tradition of prophet{saw}
- · Ijma: The consensus of the prophet's companions is known
as the Ijma.
- · Ijma of the successors of the companion and ijma of the successors
of the successors of the companions.
1.
Quran
The
holy Quran is the first primary and revealed source of Divine Islamic law,
descended by the process of revelation upon prophet Mohammad{saw} in Arabic
language for the guidance of the people. It contains the basic principle of the
Islamic law. The word Quran is derived
from the Arabic word ‘Qara’ which means to read, to recite. The quran is also
referred to by other names such as Al-furqan{the distinguisher},
kalam-u-llah{the word of Allah}, Al-kitab{the book}, Al-noor{the light} and
Al-huda{the guidance}.
The
first verse of the Quran were revealed to Prophet{saw} in the cave of hira in
Makkah. The Quran is divided in 114 surah consists of 6666 ayats divided in
rukus and juz. The Quran is the only book that remains unchanged from its
original form. The Quran is the exact words of God that the
Prophet received from the angel Gabriel.The Quran was memorized and written down by the
companions of the Prophet. The Quran was compiled into a book during the time
of Caliph Abu bakar. The compilation of the Quran was motivated by the
death of the many Quran memorizers in the battle of Yamama. Before the
compilation of Quran, the Quran exists in scatted form among the companions of
prophet. A committee headed by the zaid ibn thabit was tasked with
compiling the Quran. During the time of the 3rd caliph hazrat
usman, he standardized the Quran into a single dialect i.e. the Qureshi
dialect and on that dialect , the writing style of the quran was approached all
over his dominion, and the same is still in the use today. Hazrat usman is
wrongly regarded as the jaamie ayaat-ul-quran{one who collect the ayaat
of the quran}, because this task is done much earlier at the time of prophet in
form of surah and in the time of Abu bakar in the form of book. Therefore the
hazrat usman can be regards as the one who united ummah on the on writing style
and dialect.
Quran the concept of education
It
is to be remembered that there is difference between education and literacy. A person is
not always educated just because they can read.True education is described as the process
of actively searching for knowledge. The quran as a message for all time
encourages mankind to use reason and exercise judgement. The quran no doubt
encourages men to be reader, continuous thinker, full of intellect by the terms
like Qalam{pen}, bayan{speech}, iqra{read}, the way to reach for knowledge.
Quran as a legal code
The
quran provides the core principles and values that underpin Islamic law. The
quran might not explicitly lay out every legal detail. The
original source of Islamic law is the Quran. The quran acts as a “grundnorm” which means the
fundamental norm or principle that serves as the foundation for a legal system.
2. Hadith and Sunnah
The
term hadith and sunnah are used together to describe the sayings and practice
of the prophet. Hadith literally means the “word, news, report or narration”
and sunnah literally means “way, practice, or method”. The Quran
makes use of the hadith and sunnah.The principles of law contained in the quran were
explained and amplified in the prophetic hadith and sunnah, which constitutes
the second basic source of the Islamic law. The hadith and sunnah provides the
practical guidance on how these principles { which are mentioned in the quran}
are applied. The pronouncement made by the prophet on all occasions are known
as Ahadith and are regarded as the sacred authority. The study and preservation
of hadith is called as Ilm-ul-hadith.
Types of sunnah
There
are 3 types of sunnah
1.
Sunnah qual{ verbal sunnah}
This is a reference to the
prophet's words.These sayings
are transmitted orally by the companions and later into collection of hadith.
2.
Sunnah taqrir { tacit approval}
This refers to the instance where prophet
observed his companions doing something and did not object to it.
3.
Sunnah fail{ practical sunnah}.
This
speaks to what the prophet did and did in his day-to-day existence.
3. Ijma
Ijma refers to the consensus
reached by jurists among the adherents of Muhammad {saw} during a specific era
about a legal matter. The term "jama," which means together, is the
root of it. In law it means unanimity or consensus of
opinion on a certain solution. In other words it means to agree on one
solution. Ijma as a source of islam is also found in the quran and hadith. The
prophet said that my ummat will not agree upon wrong. Ijma is the 3rd
source of the Islamic law but it is not revealed as the first 2. Ijma particularly
associated with the consensus of the companions of the prophet and their
successors. During the lifetime of the prophet he solved every problem himself
which arise during his time. The biggest example of the ijma is the collection
of the quran.
Conditions for the valid ijma
- ·
It must not be against the basic text of the quran and
hadith/sunnah.
- ·
Ijma of the companions can’t be reopen again . Their
ijma is authentic and obligatory for all Muslims.
- ·
The jurists of a particular age should be unanimous on the point arrived
at, but not in contradict with the ijma of the companions.
- The shia school accepts the ijma as a third source of law only when it emanated from the family of the prophet and through imams. Only the imam and in his absence the mujtahid {jusrist} can provide the correct interpretation of the law. In this way the jurists play an important role in the development of the legal rules under the shia school.
Secondary sources
1. Qiyas
It
is defined as the method of Islamic jurisprudence that involves analogical
reasoning to derive legal rulings from
the quran and hadith for the situation not explicitly mentioned in the quran
and hadith. Qiyas is based on the principles of extending a known ruling from
an established case to a new case because the latter shares the same effective
cause{illah}. Qiyas is the process of deducing the legal judgements for new
issues by drawing an analogy with established precedents.
Qiyas
involves four main components:
- 1. Asl [original case]: the
original case with a clear ruling from the quran and hadith.
- 2. Far’ [new case]: the new
case for which ruling is sought.
- 3. Illah [effective cause]:
the common attributes or reason that links the original case and new case.
- 4. Hukum [ruling]: the legal
ruling derived for the new case based on its similarity to the original case.
Process of qiyas
- Find a case with clear ruling in the quran and hadith
2. determination of the effective cause {illah}Identify the illah in the original case.
- This involves the understanding the reason behind the ruling.
3. Find the new case {far}
- Identify a new case that requires the ruling
4. Applicability of the illah to the new case {hukum}
- Establish that the illah in the original case applies to the new case as well
2.Taqlid
It
is an Islamic term which means the act of following legal ruling and
interpretations of established scholars of Islamic law. It comes from the word
‘qalad’ which means to initiate or to follow.
2.Istihsan
It
is an Arabic word which means to consider something good. It refers to the use
of a jurists own judgement to determine the best solution to a legal problem,
even if it might seems to contradict a direct analogy {qiyas} to existing legal
ruling.
3. Istidlal
It
refers to the process of the deriving legal ruling from the existing sources of
the Islamic law. It literally means to inference, deduction or seeking proof.
It primarily relies on quran and sunnah.
4. Istishab
It
refers to the presumption of the continuity. It comes from the Arabic word
sahba which means to continue. It signifies the idea that a previously
established state of affair is presumed to continue unless there is evidence to
the contrary.
5. Customs and usage
Customs
and usage referred to the ‘urf’ and ‘adat’, plays a significant role in legal
ruling within certain interpretation of Islamic jurisprudence.
Custom{urf}:
refers the established practices, norms prevalent within a specific society.
Usage{adat}:
similar to urf but can also encompass broader tradition and social habit.
Not
all school of thought gives urf and adat the same weight. However, some
schools, like Hanafi and Maliki to a certain extent, consider them as a source
of legal reasoning alongside the quran, sunnah and ijma.
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