- Sources of Islamic law
Various sources of Islamic law are used by Islamic jurisprudence to
elucidatethe Sharia, the body of Islamiclaw.cite web |url=http://www.al-islam.org/jurisprudence/ |title=Jurisprudence and its Principles |accessdate=2008-07-26 |last=Mutahhari |first=Morteza |authorlink=Morteza Motahhari |date= |publisher=Tahrike Tarsile Qur'an] The primary sources, accepted universally by all Muslims, are the Qur'anand Sunnah. The Qur'an is the holy scriptureof 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 Muhammadand narrated through his Companionsand 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
Sunnischools of law, secondary sources of Islamic law are consensus among Muslims jurists, analogical deduction, al-Ra'y; independent reasoning, benefit for the Community and Custom. [cite web |url=http://www.usc.edu/dept/MSA/law/shariahintroduction.html |title=Shari`ah and Fiqh |accessdate=2008-07-26 |date= |work=USC-MSA Compendium of Muslim Texts |publisher=University of Southern California] Hanafischool frequently relies on analogical deduction and independent reasoning, and Malikiand Hanbaligenerally use the Hadithinstead. Shafi'ischool uses Sunnah more than Hanafi and analogy more than two others.cite web |url=http://www.al-islam.org/al-tawhid/ijtihad-legislation.htm |title=The Role of Ijtihad in Legislation |accessdate=2008-07-26 |last=Motahhari |first=Morteza |authorlink=Morteza Motahhari |date= |publisher=Al-Tawhid] Among Shia, Usulischool of Ja'fari jurisprudenceuses four sources, which are Qur'an, Sunnah, consensus and aql. They use ijma under special conditions and rely on " aql" (intellect) to find general principles based on the Qur'an and Sunnah, and use " usul al-fiqh" as methodology to interpret the Qur'an and Sunnah in different circumstances, and AkhbariJafaris rely more on Hadith and reject ijtihad. [Momen (1985), p.185–187 and 223–234] 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. [Momen (1985), p.188]
The Qur'an 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
Meccaand 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 Qur'an was written and preserved during the life of Muhammad, and compiled soon after his death.
Muslim jurists agree that the Qur'an in its entirety is not a legal code (used in the modern sense); rather its purpose is to lay down a way of life which regulates man's relationship with others and God. [Hasan (2004) p.25–8] The verses of the Qur'an 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 Qur'an 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.Nomani and Rahnema (1994), p. 3–4]
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'itejurists, the sunnah also includes the words, deeds and acknowledgments of the twelve Imams and Fatimah, Muhammad's daughter, who are believed to be infallible.Nomani and Rahnema (1994), p. 4–7]
Justification for using the Sunnah as a source of law can be found in the Qur'an. The Qur'an commands Muslims to follow Muhammad. [cite quran|59|7|style=ref] During his lifetime, Muhammad made it clear that his traditions (along with the Qur'an) should be followed after his death. [Qadri (1986), p. 191] The overwhelming majority of Muslims consider the sunnah to be essential supplements to and clarifications of the
Qur'an. In Islamic jurisprudence, the Qur'an contains many rules for the behavior expected of Muslims but there are no specific Qur'anic 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 Qur'an. 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. On the basis of these criteria, various Hadith classifications developed."Hadith", "Encyclopedia of Islam."]
To establish the authenticity of a particular Hadith or report, it had to be checked by following the chain of transmission ("
isnad"). Thus the reporters had to cite their reference, and their reference's reference all the way back to Muhammad. All the references in the chain had to have a reputation for honesty and possessing a good retentive memory. Thus biographical analysis ("`ilm al-rijāl", lit. "science of people"), which contains details about the transmitter are scrutinized. This includes analyzing their date and place of birth; familial connections; teachers and students; religiosity; moral behaviour; literary output; their travels; as well as their date of death. Based upon these criteria, the reliability ("thiqāt") of the transmitter is assessed. Also determined is whether the individual was actually able to transmit the report, which is deduced from their contemporaneity and geographical proximity with the other transmitters in the chain. [Berg (2000) p. 8] Examples of biographical dictionaries include Ibn Hajar al-Asqalani's "Tahdhīb al-Tahdhīb" or al-Dhahabi's "Tadhkirat al-huffāz"." [See:
*Robinson (2003) pp. 69–70;
*Lucas (2004) p. 15]
Using this criteria, Hadith are classified into three categories:
mutawatir"), which are very widely known, and backed up by numerous references.
#Widespread ("mashhur"), which are widely known, but backed up with few original references.
#Isolated or Single ("wahid"), which are backed up by too few and often discontinuous references.
All medieval Muslim jurists rejected arbitrary opinion, and instead developed various secondary sources, also known as juristic principles or doctrinesClarifyme|date=September 2008, to follow in case the primary sources (i.e. the Qur'an and Sunnah) are silent on the issue. [Makdisi, John (1985). "Legal Logic and Equity in Islamic Law", The American Journal of Comparative Law, 33 (1): 63-92]
The "ijma' ", or
consensusamongst Muslim jurists on a particular legal issue, constitutes the third source of Islamic law. Muslim jurists provide many verses of the Qur'an that legitimize "ijma' " as a source of legislation.Mahmasani, S. "Falsafe-e Ghanoongozari dar Eslam". Tehran: Amir Kabir. pg. 143] [Verses cite quran|2|143|style=ref, cite quran|3|103|style=ref, cite quran|3|110|style=ref, cite quran|4|59|style=ref, cite quran|4|115|style=ref and cite quran|9|119|style=ref are presented by Mahmasani.] Muhammad himself said:
*"My followers will never agree upon an error or what is wrong",
*"God's hand is with the entire community". [Muslehuddin, M. "Philosophy of Islamic Law and the Orientalists". New Delhi: Taj printers, 1986. pg.146]
In history, it has been the most important factor in defining the meaning of the other sources and thus in formulating the doctrine and practice of the Muslim community.Encyclopedia Britannica, "Ijma".] This is so because "ijma' " represents the unanimous agreement of Muslims on a regulation or law at any given time. ["Id̲j̲māʿ", "Encyclopaedia of Islam"]
There are various views on "ijma' " among Muslims. Sunni jurists consider "ijma' " as a source, in matters of legislation, as important as the Qur'an and Sunnah. Shiite jurists, however, consider "ijma' " as source of secondary importance, and a source that is, unlike the Qur'an and Sunnah, not free from error.Nomani and Rahnema (1994), p. 7–9] "Ijma' " was always used to refer to agreement reached in the past, either remote or near. Amongst the Sunni jurists there is diversity on who is eligible to participate in "ijma' ", as shown in the following table:
In modern Muslim usage it is no longer associated with traditional authority and appears as democratic institution and an instrument of reform.
"Qiyas" or analogical deduction is the fourth source of
Shariafor the Sunnijurisprudence. Shiites do not accept "qiyas", but replace it with reason ("aql"). "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 Qur'anand Sunnah. "Qiyas" must not be based on arbitrary judgment, but rather be firmly rooted in the primary sources.Nomani and Rahnema (1994), p. 9–12]
Supporters of "qiyas" will often point to passages in the Qur'an 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." [Mahmasani, S. "Falsafe-e Ghanoongozari dar Eslam". Tehran: Amir Kabir. pg. 140] 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 Byzantinesand 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 "qiyas" 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.
Hanafischool of thought very strongly supports "qiyas". Imam Abu Hanifa, an important practitioner of "qiyas", elevated "qiyas" to a position of great significance in Islamic law. Abu Hanifa extended the rigid principle of basing rulings on the Qur'an and Sunnah to incorporate opinion and exercise of free thought by jurists. In order to respond suitably to emerging problems, he based his judgments, like other jurists, on the explicit meanings of primary texts (the Qur'an and sunnah). But, he also considered the "spirit" of Islamic teachings, as well as the whether the ruling would be in the interest of the objectives of Islam. Such rulings were based on public interest and the welfare of the Muslim community.
Shafi'ischool of thought accepts "qiyas" as a valid source. Imam Shafi'i, however, considered it a weak source, and tried to limit the cases where jurists would need to resort to "qiyas". He criticized and rejected analogical deductions that were not firmly rooted in the Qur'anand sunnah. According to Shafi'i, if analogical deductions were not strictly rooted in primary sources, they would have adverse effects. One such consequence could be variety of different rulings in the same subject. Such a situation, he argued, would undermine the predictability and uniformity of a sound legal system.Nomani and Rahnema (1994), p. 13–15] Imam Malikaccepted "qiyas" as a valid source of legislation. For him, if a parallel could be established between the effective cause of a law in the primary sources and a new case, then analogical deduction could be viable tool. Malik, however, went beyond his adherence to "strict analogy" and proposed pronouncements on the basis of what jurists considered was "public good".
Abu Hanifadeveloped a new source called " istihsan", or juristic preference, as a form of analogical deduction ("qiyas").Encyclopedia Britannica, "Istihsan"] "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 a last resort if none of the widely accepted sources are applicable to a problem. It involves giving favor to rulings that dispel hardship and bring ease to people. This doctrine was justified directly by the Qur'an: "Allah desires you ease and good, not hardship".Hasan (2004), p.157–160] 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, [Hallaq, "Considerations on the Function and Character of Sunnī Legal Theory".] and its opponents claimed that it often departs from the primary sources.
This doctrine was useful in the
Islamic worldoutside the Middle East where the Muslims encountered environments and challenges they had been unfamiliar with in Arabia. One example of isthisan is cited as follows: If a well is contaminated it may not be used for ritual purification. Istihsan suggests that withdrawing a certain number of buckets of water from the well will remove the impurities. Analogical deduction ("qiyas"), however, says that despite removing some of the water, a small concentration of contaminants will always remain in the well (or the well walls) rendering the well impure. The application of analogical deduction means the public may not use the well, and therefore causes hardship. Thus the principle of istihsan is applied, and the public may use the well for ritual purification.
Imam Malikdeveloped a tertiary source called "al-maslaha al-mursalah", which means social benefit. According to this source of Islamic law, rulings can be pronounced in accordance with the "underlying meaning of the revealed text in the light of public interest". In this case the jurists uses his wisdom to pursue public interest. This source is rejected by the Shafi'is.
Shafi'i accepted cases in which he had to be more flexible with the application of Qisas. Similar to Abu Hanifa and
Imam Malik, he developed a tertiary source of legislation. The Shafi'i school adopted "istidlal", a process of seeking guidance from the source. Istidlal allowed the jurists to avoid "strict analogy" in a case where no clear precedent could be found. In this case, public interest was distinguished as a basis for legislation.
Scholars divide "istdilal" into three types. The first is the expression of the connection existing between one proposition and another without any specific effective cause. Next, "istidlal" could mean presumption that a state of things, which is not proved to have ceased, still continues. The final type of "istidlal" is the authority as to the revealed laws previous to Islam. [Hodkinson, Keith. "Muslim Family Law: A Sourcebook".
India: Routledge, 1984.]
Shi'itejurists maintain that if a solution to a problem can not be found from the primary sources, then "aql" or reason should be given free rein to deduce a proper response from the primary sources. The process, whereby rational efforts are made by the jurist to arrive at an appropriate ruling, when applied is called "ijtihad" (literally meaning "exerting oneself"). Shi'ite jurists maintain that qiyas is a specific type of ijtihad. The Sunni Shafi' school of thought, however, holds that both qiyas and ijtihad are the same.Nomani and Rahnema (1994), p.15–16]
Sunni jurists accepted ijtihad as a mechanism for deducing rulings. They, however, announced an end to its practice during the thirteenth century. The reason for this was that centers of Islamic learning (such as
Baghdad, Nishapur, and Bukhara) had fallen into the hands of the Mongols. Thus, the "doors to ijtihad", were closed. In Sunni Islam, thus, ijtihad was replaced by "taqlid" or the acceptance of doctrines developed previously.Ijtihad, "Encyclopaedia of Islam"] Later in Sunni history, however, there were notable instances of jurists using reason to re-derive law from the first principles. One was Ibn Taymiyya(d. 728/1328), another was Ibn Rus̲h̲d (Averroes d. 595/1198).
There are many justifications, found in the Qur'an and sunnah, for the use of ijtihad. For example, during a conversation with Mu'ādh ibn Jabal, Muhammad asked the former how he would give judgments. Mu'ādh replied that he would refer first to the Qur'an, then to the Sunnah and finally commit to ijtihad to make his own judgment. Muhammad approved of this. [ʻAlwānī (1973), p. 9]
A lawyer who is qualified to use this source is called a "mujtahid". The founders of the Sunni
madhabs (schools of law) were considered such lawyers. All "mujtahid" exercise at the same time the powers of a " mufti" and can give " fatwa". Some "mujtahid" have claimed to be "muj̲addid", or "renewer of religion." Such persons are thought to appear in every century. In Shi'ite Islam they are regarded as the spokespersons of the hidden Imam.
The term urf, meaning "to know", refers to the customs and practices of a given society. Although this was not formally included in Islamic law,"Urf", "Encyclopaedia of Islam"] the Sharia recognizes customs that prevailed at the time of Muhammad but were not abrogated by the Qur'an or the tradition (called "Divine silence"). Practices later innovated are also justified, since Islamic tradition says what the people, in general, consider good is also considered as such by God. According to some sources, urf holds as much authority as ijma (consensus), and more than qiyas (analogical deduction). Urf is the Islamic equivalent of "
common law".Hasan (2004), p. 169–71]
Urf was first recognized by Abū Yūsuf (d. 182/798), an early leader of the Ḥanafī school. However, it was considered part of the
sunnah, and not as formal source. Later al-Sarak̲h̲sī (d. 483/1090), opposed it, holding that custom cannot prevail over a written text.
According to Sunni jurisprudence, in the application of urf, custom that is accepted into law should be commonly prevalent in the region, not merely in an isolated locality. If it is in absolute opposition to Islamic texts, custom is disregarded. However, if it is in opposition to qiyas (analogical deduction), custom is given preference. Jurists also tend to, with caution, give precedence to custom over doctoral opinions of highly esteemed scholars. Shia does not consider custom as a source of jurisprudence.
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