SOURCES of MUSLIM LAW

Various sources of Islamic law are used by Islamic jurisprudence to elucidate the Sharia, the
body of Islamic law. The primary sources, accepted universally by all Muslims, are the Koran and
Sunnah. The Koran is the holy scripture of Islam, believed by Muslims to be the direct and
unaltered word of Allah. The Sunnah consists of the religious actions and quotations of the
Islamic Prophet Muhammad and narrated through his Companions and Shia Imams. However,
some schools of jurisprudence use different methods to judge the source’s level of authenticity.
As Islamic regulations stated in the primary sources do not explicitly deal with every
conceivable eventuality, jurisprudence must refer to resources and authentic documents to find
the correct course of action. According to Sunni schools of law, secondary sources of Islamic law
are consensus among Muslim jurists, analogical deduction, independent reasoning, a benefit for
the Community, and Custom. The hanafi school frequently relies on analogical deduction and
independent reasoning, and Maliki and Hanbali generally use the Hadith instead. Shafi’i school
uses Sunnah more than Hanafi and analogy more than two others. Among Shia, the Usuli school of
Ja’fari jurisprudence uses four sources, which are Koran, Sunnah, consensus, and aql. They use
ijma under special conditions and rely on aql (intellect) to find general principles based on the
Koran and Sunnah, and use usul al-fiqh as a methodology to interpret the Koran and Sunnah in
different circumstances, and Akhbari Jafaris rely more on Hadith and reject ijtihad. According to
Momen, despite considerable differences in the principles of jurisprudence between Shia and the
four Sunni schools of law, there are fewer differences in the practical application of jurisprudence
to ritual observances and social transactions.
I. Ancient sources: A. Preliminary Sources
The quran
The quran is the first and most important source of Islamic law. Believed to be the direct
word of God as revealed to Muhammad through angel Gabriel in Mecca and Medina, the
scripture specifies the moral, philosophical, social, political, and economic basis on which a
society should be constructed. The verses revealed in Mecca deal with philosophical and
theological issues, whereas those revealed in Medina are concerned with socio-economic laws.
The quran was written and preserved during the life of Muhammad and compiled soon after his
death.
Muslim jurists agree that the quran in its entirety is not a legal code (used in the modern
sense); rather its purpose is to lay down a way of life that regulates man’s relationship with
others and God. The verses of the Koran are categorized into three fields: “science of speculative
theology”, “ethical principles” and “rules of human conduct”. The third category is directly
concerned with Islamic legal matters which contains about five hundred verses or one-thirteenth
of it. The task of interpreting the Koran has led to various opinions and judgments. The
interpretations of the verses by Muhammad’s companions for Sunnis and Imams for Shias are
considered the most authentic, since they knew why, where, and on what occasion each verse was
revealed.
Sunnah
The Sunnah is the next important source, and is commonly defined as “the traditions and
customs of Muhammad” or “the words, actions and silent assertions of him”. It includes the
everyday sayings and utterances of Muhammad, his acts, his tacit consent, and acknowledgments
of statements and activities.
According to Shi’ite jurists, the sunnah also includes the words, deeds, and acknowledgments
of the twelve Imams and Fatimah, Muhammad’s daughter, who are believed to be infallible.
Justification for using the Sunnah as a source of law can be found in the Koran. The Koran
commands Muslims to follow Muhammad. During his lifetime, Muhammad made it clear that his
traditions (along with the Quran) should be followed after his death. The overwhelming majority
of Muslims consider the sunnah to be essential supplements to and clarifications of the Koran. In
Islamic jurisprudence, the Quran contains many rules for the behavior expected of Muslims but
there are no specific Quranic rules on many religious and practical matters. Muslims believe that
they can look at the way of life, or sunnah, of Muhammad and his companions to discover what to
imitate and what to avoid.
Much of the Sunnah is recorded in the Hadith. Initially, Muhammad had instructed his
followers not to write down his acts, so they may not confuse it with the Koran. However, he did
ask his followers to disseminate his sayings orally. As long as he was alive, any doubtful record
could be confirmed as true or false by simply asking him. His death, however, gave rise to
confusion over Muhammad’s conduct. Thus the Hadith were established. Due to problems of
authenticity, the science of Hadith (Arabic: `Ulum al-hadith) is established. It is a method of
textual criticism developed by early Muslim scholars in determining the veracity of reports
attributed to Muhammad. This is achieved by analyzing the text of the report, the scale of the
report’s transmission, the routes through which the report was transmitted, and the individual
narrators involved in its transmission. Based on these criteria, various Hadith classifications
developed.
B. Secondary sources
All medieval Muslim jurists rejected arbitrary opinion, and instead developed various secondary
sources, also known as juristic principles or doctrines to follow in case the primary sources (i.e.
the Koran and Sunnah) are silent on the issue.
Ijma
Ijma can be interpreted as Judge made law or their interpretations based on wisdom.
Koran and Sunna look into the past, but Ijma and Kiyas looked into the future. The orthodox Muslim held
that human beings have to exercise their intellect to understand them, but in that process that can’t
be modified and hence developed Ijma. Ijma is also termed as the “Foundation of foundations”.
Validity of Ijma is based on a Sunna of Prophet which declares “God will not allow his people to
agree on an error”. Sunni jurisprudence is based on Ijmas. Hanafi’s believes that the law must
change with the changing time that is what is reflected in Ijma.
According to a Sunni doctrine, the Muslim Mujtahids(jurists) alone can have a say in the
formation of the Ijma, who must be deeply learned in the law and able to render correct judgment.
All the schools of Sunnis accept Ijma as a source of law except Hanbals who formed usul from
Sunna and gave liberal interpretation to the traditions of the Prophet. During the expansion of
Islam in various parts of the world quran and Sunnas felt insufficient and their developed Ijmas.
Qiyas / Kiyas
Qiyas or analogical deduction is the fourth source of Sharia for the Sunni jurisprudence.
Shiites do not accept qiyas, but replace it with reason. Qiyas is the process of legal deduction
according to which the jurist, confronted with an unprecedented case, bases his or her argument on
the logic used in the Koran and Sunnah. Qiyas must not be based on arbitrary judgment, but rather
be firmly rooted in the primary sources.
Supporters of qiyas will often point to passages in the Koran that describe an application of
a similar process by past Islamic communities. According to Hadith, Muhammad said: “Where
there is no revealed injunction, I will judge amongst you according to reason.” Further, he
extended the right to reason to others. Finally, qiyas is sanctioned by the ijma, or consensus,
amongst Muhammad’s companions.
The success and expansion of Islam brought it into contact with different cultures,
societies and traditions, such as those of Byzantines and Persians. With such contact, new
problems emerged for Islamic law to tackle. Moreover, there was a significant distance between
Medina, the Islamic capital, and the Muslims on the periphery on the Islamic state. Thus far off
jurists had to find novel Islamic solutions without the close supervision of the hub of Islamic law
(back in Medina). During the Umayyad dynasty, the concept of qiyas was abused by the rulers.
The Abbasids, who succeeded the Ummayads defined it more strictly, in an attempt to apply it
more consistently.
The general principle behind the process of Kiyas is based on the understanding that every
legal injunction guarantees a beneficial and welfare satisfying objective. Thus, if the cause of an
injunction can be deduced from the primary sources, then analogical deduction can be applied to
cases with similar causes. For example, wine is prohibited in Islam because of its intoxicating
property. Thus qiyas leads to the conclusion that all intoxicants are forbidden.
Abu Hanifa developed a new source called istihsan, or juristic preference, as a form of
analogical deduction (qiyas). Istihsan is defined as:
• Means to seek ease and convenience,
• To adopt tolerance and moderation,
• To over-rule analogical deduction, if necessary.
The source, inspired by the principle of conscience, is the last resort if none of the widely
accepted sources apply to a problem. It involves giving favor to rulings that dispel hardship
and bring ease to people. This doctrine was justified directly by the Koran: “Allah desires you ease
and good, not hardship”. Though its main adherents were Abu Hanifa and his pupils (such as Abu
Yusuf), Malik, and his students made use of it to some degree. The source was subject to extensive
discussion and argumentation, and its opponents claimed that it often departs from the primary
sources.

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