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
Taqlid (Arabic: تقليد) is a significant concept in Islamic jurisprudence (fiqh), particularly within the context of legal authority and following scholarly opinions. The term comes from the root "q-l-d", which means "to imitate" or "to follow." In Islamic law, Taqlid refers to the act of a layperson or a non-expert Muslim following the legal rulings and opinions of a qualified jurist or scholar (mujtahid) without demanding detailed evidence or reasoning behind those rulings.
Definition:
In Islamic jurisprudence, Taqlid is the acceptance of a legal opinion (fatwa) from a qualified scholar by someone who is not qualified to perform ijtihad (independent legal reasoning). It is seen as a practical necessity for the majority of Muslims who do not possess the requisite knowledge to derive rulings directly from the Qur’an and Sunnah.
Types of Taqlid:
Taqlid al-Shakhsī (Personal Taqlid):
Following a specific mujtahid in all religious matters.
Taqlid al-Madhhabī (Madhhab-based Taqlid):
Following the rulings of a particular school of law (e.g., Hanafi, Maliki, Shafi’i, Hanbali).
Taqlid al-A‘mā (Blind Taqlid):
Following someone without any concern for their qualification; this is generally discouraged or condemned by scholars.
Is Taqlid Obligatory?
The obligation of Taqlid depends on one's level of knowledge:
For Laypersons: Taqlid is considered necessary because they lack the tools to engage in ijtihad.
For Scholars Capable of Ijtihad: Taqlid is not permitted; they are required to derive rulings themselves.
For Intermediate Students of Knowledge: There is a difference of opinion; some scholars allow partial taqlid until the person becomes a mujtahid.
Evidence and Support for Taqlid:
While the Qur’an and Hadith encourage seeking knowledge, they also recognize that not everyone can be a scholar:
Qur'an (Surah al-Nahl, 16:43):
“So ask the people of knowledge if you do not know.”
Qur'an (Surah al-Tawbah, 9:122):
“It is not for the believers to go out (to fight) all together. For there should separate from every division a group (remaining behind) to obtain understanding in the religion, and warn their people when they return to them…”
These verses imply that there must be a class of people who specialize in religious knowledge, and others should consult them.
Criticism and Reformist Views:
Some Islamic reformers and modern thinkers criticize rigid or "blind taqlid", arguing that:
It may lead to stagnation in legal thought.
It can discourage critical thinking and context-based reasoning.
It sometimes results in blindly following outdated rulings in changed contexts.
Prominent scholars like Ibn Taymiyyah and Shah Waliullah encouraged returning to ijtihad and reducing overreliance on taqlid.
Contemporary Application:
In modern times, Muslims often rely on:
Fatwas from recognized scholars
Legal bodies or councils (like Dar al-Ifta or Fiqh Councils)
Their school of law (madhhab)
Many scholars suggest a balanced approach: practicing taqlid with discernment, ensuring the scholar being followed is qualified and trustworthy.
2.Istihsan
Istihsan (Arabic: الاستحسان) is one of the important secondary sources of Islamic jurisprudence (usul al-fiqh), used especially in the Hanafi school of law. The term Istihsan literally means “to consider something good” or “to prefer”, and in legal context, it refers to a jurist’s preference for a ruling that departs from strict analogy (qiyas) in favor of a solution that better serves justice, equity, or public interest.
Definition:
Istihsan is a principle of Islamic law that allows a jurist to deviate from a strict application of qiyas (analogical reasoning) to avoid hardship or achieve a more just outcome, based on stronger evidence, necessity, or public interest.
It is sometimes described as “equitable discretion”, or juristic preference based on fairness.
Why Istihsan?
In certain situations, applying a general legal rule or analogy might lead to hardship, injustice, or impractical results. In such cases, Istihsan allows the jurist to override the rule or analogy in favor of a more reasonable and just solution, without violating the spirit of Shariah.
Examples of Istihsan:
Hanafi Example – Contract of Istisna’ (Manufacturing Contract):
General qiyas would not permit a sale of something not yet in existence (like a custom-made item).
However, Istihsan permits it because of necessity and widespread practice (public interest and ease).
Water in a Shared Pool:
Qiyas would require the same strict rules for purity as individual containers.
But Istihsan allows a more lenient rule, considering the large volume and difficulty in testing.
A Woman in Iddah (waiting period) due to Divorce:
Under strict rules, the woman cannot move out.
Istihsan might allow her to move if her safety or well-being is at risk.
Types of Istihsan:
Istihsan through Text (Nass):
When a text (Qur’an or Hadith) overrides a ruling based on qiyas.
E.g., allowing a sick person to break fast despite qiyas suggesting fasting is obligatory.
Istihsan through Ijma (Consensus):
When consensus of jurists overrides strict analogy.
Istihsan through Necessity:
Ruling is changed to prevent hardship or harm.
Istihsan through Custom (‘Urf):
Recognizing prevailing customs over rigid legal reasoning.
Istihsan through Public Interest (Maslahah):
Preferring rulings that benefit the community.
Schools of Thought and Istihsan:
Hanafi School: Strongly supports Istihsan. Imam Abu Hanifa called it a way of mercy and flexibility in law.
Maliki School: Uses similar principles under maslahah mursalah.
Shafi’i School: Generally rejects Istihsan. Imam al-Shafi’i criticized it, saying, “He who practices Istihsan legislates.”
Hanbali School: Accepts it cautiously in certain cases, especially if supported by other principles.
Criticism of Istihsan:
Critics argue it may lead to subjectivity and arbitrary rulings.
Imam Shafi’i feared it would allow jurists to make law based on personal preference.
Hence, many scholars set strict limits: Istihsan must be based on strong supporting evidence, not mere opinion.
3. Istidlal
Istidlal (Arabic: استدلال) is a fundamental concept in Usul al-Fiqh (principles of Islamic jurisprudence), referring to the process of seeking and deriving legal rulings through logical reasoning and evidence. The term "Istidlal" comes from the Arabic root "dalala", meaning "to point toward" or "to guide," and in jurisprudential terms, it refers to the act of inference or deduction using indirect or supplementary sources when primary sources (Qur’an and Sunnah) do not directly address an issue.
Definition:
In Islamic law, Istidlal is the method of extracting legal rulings by employing logical reasoning and subsidiary sources when there is no clear text in the Qur'an or Sunnah. It is often used in conjunction with other principles like Ijma’ (consensus), Qiyas (analogy), Maslahah (public interest), and others.
Key Features of Istidlal:
It involves reasoned argumentation.
It is not bound to strict textual sources, but draws from them logically or contextually.
It supports or supplements primary evidence.
It requires juristic competence (ijtihad) and mastery of usul al-fiqh.
Difference Between Istidlal and Ijtihad:
Concept Istidlal Ijtihad
Focus The method or technique of inference The broader effort to derive law
Scope A tool within ijtihad The entire process of legal reasoning
User Mujtahid Mujtahid
Nature Specific reasoning approach General independent juristic reasoning
Forms/Tools of Istidlal:
Islamic scholars have employed various forms of Istidlal, especially when nasus (clear texts) are silent. These include:
Qiyas (Analogy):
Extending a known ruling from a case in the Qur’an/Sunnah to a new case with similar reasoning.
Example: Applying the prohibition of wine to drugs due to shared intoxicating effect.
Istihsan (Juristic Preference):
Departing from a strict analogy for a ruling that better serves justice or necessity.
Example: Allowing water usage in purification even in minor ritual impurity when strict analogy would disallow it.
Maslahah Mursalah (Public Interest):
Rulings based on the common good where no direct evidence exists.
Example: Establishing traffic laws or ID systems for order and security.
'Urf (Custom):
Using prevailing custom in a society as a basis for law, if it does not contradict Shariah.
Example: Following local business practices in contracts.
Istishab (Presumption of Continuity):
Assuming the continuation of an established condition until proven otherwise.
Sadd al-Dhara’i (Blocking the Means):
Preventing permissible actions that may lead to harm or prohibited results.
Scholarly Views on Istidlal:
Imam Shafi’i acknowledged Istidlal but prioritized Qur’an, Sunnah, Ijma’, and Qiyas.
Maliki and Hanbali schools accepted broader methods of Istidlal, like istihsan and maslahah.
Hanafi scholars were the most systematic in developing qiyas and istihsan as tools of istidlal.
Zahiri school (like Ibn Hazm) rejected qiyas and some other forms of istidlal, sticking rigidly to textualism.
Example in Practice:
Let’s say the Qur'an and Hadith do not mention the permissibility of online banking:
Scholars use Istidlal:
Qiyas: Analogize online transactions with in-person transactions that are allowed.
Maslahah: Consider the public benefit of accessibility and financial management.
Urf: Recognize digital platforms as a customarily accepted medium of commerce.
4. Istishab
Istishab is an important principle in Islamic jurisprudence, primarily used in the field of usul al-fiqh (the principles of Islamic jurisprudence). The term "Istishab" is derived from the Arabic root word "s-h-b," meaning continuity or persistence. In legal theory, it refers to the presumption of the continuity of a known state of affairs until there is a valid proof or evidence to the contrary.
Definition:
In Islamic law, Istishab is the legal presumption that something continues to be in the same state unless there is evidence to prove otherwise. It can be understood as a rule of continuity, where the status quo is assumed to persist until there is a change supported by evidence.
Application of Istishab:
Istishab is applied in a variety of legal scenarios. Some of the most prominent applications include:
Presumption of the Continuation of a Legal Status:
For example, if a person is assumed to be in a state of purity (e.g., having performed wudu or ablution), and there is no evidence to suggest that they have lost that state (such as breaking the wudu), the presumption is that they remain in that state of purity until evidence indicates otherwise.
Presumption of Ownership:
If a person has ownership of something, the presumption is that they continue to own it until there is evidence of a transfer or loss of ownership.
Presumption of Marital Status:
If a person is married, they are presumed to remain married until there is clear evidence of divorce or separation.
Presumption of Innocence:
The principle also underlies the presumption of innocence in Islamic criminal law, where a person is assumed innocent of a crime until evidence proves otherwise.
The Legal Process:
The principle of Istishab is used when there is a lack of direct evidence about a situation, and it operates on the basis that what is already established or known to be in place should remain unchanged in the absence of counter-evidence. For example, if someone is uncertain whether they have performed an action that invalidates their ritual purity (like using the toilet), they would presume they are still in a state of purity unless they have clear proof that their purity has been broken.
Types of Istishab:
Istishab al-Hukm (Presumption of Continuity of Legal Status):
This refers to the continuation of a legal status, such as the continuation of a contract, ownership, or marital status, until proven otherwise.
Istishab al-Ahwal (Presumption of Continuity of Circumstances):
This refers to the continuation of a particular state or condition, such as a person's state of health, or physical purity in the absence of evidence to the contrary.
Conditions for the Validity of Istishab:
For Istishab to be valid, certain conditions must be met:
Certainty of the Initial State: The initial state must be clearly established and certain. This is because the presumption of continuity is based on a known and established fact.
Absence of Counter-Evidence: There must be no evidence or indication to suggest a change or alteration in the established state.
No Clear Contradiction: If there is a clear contradiction in the facts, Istishab cannot be applied. For instance, if someone is presumed to be in a state of purity but a strong indication exists (such as a certain event like sleeping) that would invalidate their purity, Istishab would not apply.
Example in Islamic Jurisprudence:
An example of Istishab in practice is in the case of someone who is uncertain whether they have broken their fast during Ramadan. Since there is no clear evidence that the fast has been broken, the presumption under Istishab is that the fast remains valid.
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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