Sources of Islamic law
Encyclopedia
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 Qur'an
and Sunnah
. The Qur'an 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 Imams- (as per the beliefs of the school of Ahle-Sunnah and Ahle-Shia). 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 Muslims jurists
, analogical deduction
, al-Ra'y; independent reasoning, benefit for the Community and Custom
. 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, Usuli school of Ja'fari jurisprudence
uses 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 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.
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 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 Qur'an was written and preserved during the life of Muhammad, and compiled soon after his death.
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.
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 Qur'an. The Qur'an commands Muslims to follow Muhammad. During his lifetime, Muhammad made it clear that his traditions (along with the Qur'an) should be followed after his death. 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.
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. Examples of biographical dictionaries include Ibn Hajar al-Asqalani
's "Tahdhīb al-Tahdhīb" or al-Dhahabi
's "Tadhkirat al-huffāz."
Using this criterion, Hadith are classified into three categories:
'
The ijma' , or consensus amongst 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. Muhammad himself said:
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. This is so because ijma' represents the unanimous agreement of Muslims on a regulation or law at any given time.
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. 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.
for the Sunni jurisprudence. 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'an
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 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." 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 Abbasid
s, 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.
The Hanafi
school 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.
The Shafi'i
school 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'an
and 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.
Imam Malik accepted 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".
, or juristic preference, as a form of analogical deduction (qiyas). Istihsan is defined as:
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". 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.
This doctrine was useful in the Islamic world outside 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.
, 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.
.
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.
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. 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.
. 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
".
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.
Shia
Fiqh
Fiqh is Islamic jurisprudence. Fiqh is an expansion of the code of conduct expounded in the Quran, often supplemented by tradition and implemented by the rulings and interpretations of Islamic jurists....
to elucidate
Elucidate
Elucidate is a trance duo based in the US. The Elucidate DJ and record producer team is made up of Ken Loi and Sean Beckwith. Since 2005 they have produced and performed together, releasing numerous trance songs and remixes on a wide variety of labels....
the Sharia
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
, the body of Islamic law. The primary sources, accepted universally by all Muslims, are the Qur'an
Qur'an
The Quran , also transliterated Qur'an, Koran, Alcoran, Qur’ān, Coran, Kuran, and al-Qur’ān, is the central religious text of Islam, which Muslims consider the verbatim word of God . It is regarded widely as the finest piece of literature in the Arabic language...
and Sunnah
Sunnah
The word literally means a clear, well trodden, busy and plain surfaced road. In the discussion of the sources of religion, Sunnah denotes the practice of Prophet Muhammad that he taught and practically instituted as a teacher of the sharī‘ah and the best exemplar...
. The Qur'an is the holy scripture of Islam, believed by Muslims to be the direct and unaltered word of Allah
God
God is the English name given to a singular being in theistic and deistic religions who is either the sole deity in monotheism, or a single deity in polytheism....
. The Sunnah consists of the religious actions and quotations of the Islamic Prophet Muhammad
Muhammad
Muhammad |ligature]] at U+FDF4 ;Arabic pronunciation varies regionally; the first vowel ranges from ~~; the second and the last vowel: ~~~. There are dialects which have no stress. In Egypt, it is pronounced not in religious contexts...
and narrated through his Companions and Imams- (as per the beliefs of the school of Ahle-Sunnah and Ahle-Shia). 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 Muslims jurists
Ijma
Ijmāʿ is an Arabic term referring to the consensus of the Muslim community. Various schools of thought within Islamic jurisprudence may define this consensus as that of the first generation of Muslims only; the consensus of the first three generations of Muslims; the consensus of the jurists...
, analogical deduction
Qiyas
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 to a new circumstance and create a new injunction...
, al-Ra'y; independent reasoning, benefit for the Community and Custom
Urf
Urf العرف is an Arabic Islamic term referring to the custom, or 'knowledge', of a given society. To be recognized in an Islamic society, Urf must be compatible with Sharia law...
. Hanafi
Hanafi
The Hanafi school is one of the four Madhhab in jurisprudence within Sunni Islam. The Hanafi madhhab is named after the Persian scholar Abu Hanifa an-Nu‘man ibn Thābit , a Tabi‘i whose legal views were preserved primarily by his two most important disciples, Abu Yusuf and Muhammad al-Shaybani...
school frequently relies on analogical deduction and independent reasoning, and Maliki
Maliki
The ' madhhab is one of the schools of Fiqh or religious law within Sunni Islam. It is the second-largest of the four schools, followed by approximately 25% of Muslims, mostly in North Africa, West Africa, the United Arab Emirates, Kuwait, and in some parts of Saudi Arabia...
and Hanbali
Hanbali
The Hanbali school is one the schools of Fiqh or religious law within Sunni Islam. The jurisprudence school traces back to Imam Ahmad ibn Hanbal but was institutionalized by his students. Hanbali jurisprudence is considered very strict and conservative, especially regarding questions of dogma...
generally use the Hadith
Hadith
The term Hadīth is used to denote a saying or an act or tacit approval or criticism ascribed either validly or invalidly to the Islamic prophet Muhammad....
instead. Shafi'i
Shafi'i
The Shafi'i madhhab is one of the schools of fiqh, or religious law, within the Sunni branch of Islam. The Shafi'i school of fiqh is named after Imām ash-Shafi'i.-Principles:...
school uses Sunnah more than Hanafi and analogy more than two others. Among Shia, Usuli school of Ja'fari jurisprudence
Ja'fari jurisprudence
Jaʿfarī school of thought, Ja`farite School, Jaʿfarī jurisprudence or Jaʿfarī Fiqh is the school of jurisprudence of most Shi'a Muslims, derived from the name of Jaʿfar as-Ṣādiq, the 6th Shi'a Imam...
uses four sources, which are Qur'an
Qur'an
The Quran , also transliterated Qur'an, Koran, Alcoran, Qur’ān, Coran, Kuran, and al-Qur’ān, is the central religious text of Islam, which Muslims consider the verbatim word of God . It is regarded widely as the finest piece of literature in the Arabic language...
, Sunnah
Sunnah
The word literally means a clear, well trodden, busy and plain surfaced road. In the discussion of the sources of religion, Sunnah denotes the practice of Prophet Muhammad that he taught and practically instituted as a teacher of the sharī‘ah and the best exemplar...
, consensus and 'aql
'Aql
‘Aql , is an Arabic language term used in Islamic theology or philosophy to the intellect the rational faculty of the soul or mind. It is the normal translation of the Greek term nous...
. They use ijma under special conditions and rely on 'aql
'Aql
‘Aql , is an Arabic language term used in Islamic theology or philosophy to the intellect the rational faculty of the soul or mind. It is the normal translation of the Greek term nous...
(intellect) to find general principles based on the Qur'an and Sunnah, and use usul al-fiqh
Usul al-fiqh
Uṣūl al-fiqh is the study of the origins, sources, and principles upon which Islamic jurisprudence is based. In the narrow sense, it simply refers to the question of what are the sources of Islamic law...
as methodology to interpret the Qur'an and Sunnah in different circumstances, and Akhbari
Akhbari
The Akhbārīs are Twelver Shī‘a Muslims who reject the use of reasoning in deriving verdicts, and believe only the Qur'an, aḥadīth, and consensus should be used as sources to derive verdicts . The term Akhbārī is used in contrast to Usūlī...
Jafaris rely more on Hadith and reject ijtihad
Ijtihad
Ijtihad is the making of a decision in Islamic law by personal effort , independently of any school of jurisprudence . as opposed to taqlid, copying or obeying without question....
. 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.
Qur’an
Mecca
Mecca is a city in the Hijaz and the capital of Makkah province in Saudi Arabia. The city is located inland from Jeddah in a narrow valley at a height of above sea level...
and Medina
Medina
Medina , or ; also transliterated as Madinah, or madinat al-nabi "the city of the prophet") is a city in the Hejaz region of western Saudi Arabia, and serves as the capital of the Al Madinah Province. It is the second holiest city in Islam, and the burial place of the Islamic Prophet Muhammad, and...
, the scripture specifies the moral, philosophical, social, political and economic
Islamic economics
Islamic economics refers to the body of Islamic studies literature that "identifies and promotes an economic order that conforms to Islamic scripture and traditions," and in the economic world an interest-free Islamic banking system, grounded in Sharia's condemnation of interest...
basis on which a society should be constructed. The verses revealed in Mecca deal with philosophical
Islamic philosophy
Islamic philosophy is a branch of Islamic studies. It is the continuous search for Hekma in the light of Islamic view of life, universe, ethics, society, and so on...
and theological
Islamic theology
Islamic theology is a branch of Islamic studies regarding the beliefs associated with the Islamic faith. Any religious belief system, or creed, can be considered an example of aqidah. However, this term has taken a significant technical usage in Islamic history and theology, denoting those...
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.
The verses of the Qur'an are categorized into three fields: "science of speculative theology", "ethical principles
Islamic ethics
Islamic ethics , defined as "good character," historically took shape gradually from the 7th century and was finally established by the 11th century...
" 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.
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 ImamsImamah (Shi'a twelver doctrine)
Imāmah means "leadership" and it is a part of the Shi'a theology. The Twelve Imams are the spiritual and political successors to Muhammad, the Prophet of Islam, in the Twelver or Ithna Ashariya branch of Shia Islam....
and Fatimah
Fatimah
Fatimah was a daughter of the Islamic prophet Muhammad from his first wife Khadijah bint Khuwaylid. She is regarded by Muslims as an exemplar for men and women. She remained at her father's side through the difficulties suffered by him at the hands of the Quraysh of Mecca...
, Muhammad's daughter, who are believed to be infallible
The Fourteen Infallibles
The Fourteen Infallibles are Twelver Shī‘ah Islam religious figures from between the 6th and 9th century whom Twelvers believe are infallible, i.e. "divinely bestowed [with] freedom from error and sin". This quality of infallibility is known as Ismah...
.
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. During his lifetime, Muhammad made it clear that his traditions (along with the Qur'an) should be followed after his death. The overwhelming majority of Muslims consider the sunnah to be essential supplements to and clarifications of the Qur'an
Qur'an
The Quran , also transliterated Qur'an, Koran, Alcoran, Qur’ān, Coran, Kuran, and al-Qur’ān, is the central religious text of Islam, which Muslims consider the verbatim word of God . It is regarded widely as the finest piece of literature in the Arabic language...
. 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
Sunnah
The word literally means a clear, well trodden, busy and plain surfaced road. In the discussion of the sources of religion, Sunnah denotes the practice of Prophet Muhammad that he taught and practically instituted as a teacher of the sharī‘ah and the best exemplar...
, of Muhammad and his companions to discover what to imitate and what to avoid.
Much of the sunnah is recorded in the Hadith
Hadith
The term Hadīth is used to denote a saying or an act or tacit approval or criticism ascribed either validly or invalidly to the Islamic prophet Muhammad....
. 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
Science of hadith
Hadith studies are a number of religious disciplines used in the study and evaluation of the Islamic hadith by Muslim scholars. It has been described by one hadith specialist, Jalal al-Din al-Suyuti, as the science of the principles by which the conditions of both the sanad, the chain of...
(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.
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
Ilm ar-Rijal
Biographical evaluation, , literally: "knowledge of men", refers to a discipline of Islamic religious studies within hadith terminology in which the narrators of hadith are evaluated. Its goal is to distinguish authentic hadith from hadith unacceptable in establishing sanctioned religious...
, 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. Examples of biographical dictionaries include Ibn Hajar al-Asqalani
Ibn Hajar al-Asqalani
Al-Haafidh Shihabuddin Abu'l-Fadl Ahmad ibn Ali ibn Muhammad, better known as Ibn Hajar due to the fame of his forefathers, al-Asqalani due to his family origin , was a medieval Shafiite Sunni scholar of Islam who represents the entire realm of the Sunni world in the field of Hadith...
's "Tahdhīb al-Tahdhīb" or al-Dhahabi
Al-Dhahabi
Muhammad ibn Ahmad ibn `Uthman ibn Qaymaz ibn `Abd Allah, Shams al-Din Abu `Abd Allah al-Turkmani al-Diyarbakri al-Fariqi al-Dimashqi al-Dhahabi al-Shafi`i , known as Al-Dhahabi , a Shafi'i Muhaddith and historian of Islam.-Biography:...
's "Tadhkirat al-huffāz."
Using this criterion, Hadith are classified into three categories:
- Undubitable (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.
'
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 Qur'an and Sunnah) are silent on the issue.Consensus
also called anlogyThe ijma' , or consensus amongst Muslim jurists on a particular legal issue, constitutes the third source of Islamic law. Muslim jurists provide many verses
Ayah
Ayah or Aayah is the Arabic word for sign or proof:"These are the Ayat of Allah, which We recite to you with truth...
of the Qur'an that legitimize ijma' as a source of legislation. Muhammad himself said:
- "My followers will never agree upon an error or what is wrong",
- "God's hand is with the entire community".
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. This is so because ijma' represents the unanimous agreement of Muslims on a regulation or law at any given time.
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. 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:
| School of jurisprudence | Formation of ijma' | >|- | Hanafi Hanafi The Hanafi school is one of the four Madhhab in jurisprudence within Sunni Islam. The Hanafi madhhab is named after the Persian scholar Abu Hanifa an-Nu‘man ibn Thābit , a Tabi‘i whose legal views were preserved primarily by his two most important disciples, Abu Yusuf and Muhammad al-Shaybani... |
through public agreement of Islamic jurists | the jurists are experts on legal matters | |
|---|---|---|---|---|---|---|
| Shafi'i Shafi'i The Shafi'i madhhab is one of the schools of fiqh, or religious law, within the Sunni branch of Islam. The Shafi'i school of fiqh is named after Imām ash-Shafi'i.-Principles:... |
through agreement of the entire community and public at large | the people cannot agree on anything erroneous | ||||
| Maliki Maliki The ' madhhab is one of the schools of Fiqh or religious law within Sunni Islam. It is the second-largest of the four schools, followed by approximately 25% of Muslims, mostly in North Africa, West Africa, the United Arab Emirates, Kuwait, and in some parts of Saudi Arabia... |
through agreement amongst the residents of Medina Medina Medina , or ; also transliterated as Madinah, or madinat al-nabi "the city of the prophet") is a city in the Hejaz region of western Saudi Arabia, and serves as the capital of the Al Madinah Province. It is the second holiest city in Islam, and the burial place of the Islamic Prophet Muhammad, and... , the first Islamic capital |
Islamic tradition says "Medina expels bad people like the furnace expels impurities from iron" | ||||
| Hanbali Hanbali The Hanbali school is one the schools of Fiqh or religious law within Sunni Islam. The jurisprudence school traces back to Imam Ahmad ibn Hanbal but was institutionalized by his students. Hanbali jurisprudence is considered very strict and conservative, especially regarding questions of dogma... |
through agreement and practice of Muhammad's Companions Sahaba In Islam, the ' were the companions, disciples, scribes and family of the Islamic prophet... |
they were the most knowledgeable on religious matters and rightly guided | ||||
| Usuli | only the consensus of the ulama Ulama -In Islam:* Ulema, also transliterated "ulama", a community of legal scholars of Islam and its laws . See:**Nahdlatul Ulama **Darul-uloom Nadwatul Ulama **Jamiatul Ulama Transvaal**Jamiat ul-Ulama -Other:... of the same period as the Prophet or Shia Imams is binding. |
consensus is not genuinely binding in its own right, rather it is binding in as much as it is a means of discovering the Sunnah. | ||||
| Source: | ||||||
In modern Muslim usage it is no longer associated with traditional authority and appears as democratic institution and an instrument of reform.
Analogical deduction
Qiyas or analogical deduction is the fourth source of ShariaSharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
for the Sunni jurisprudence. Shiites do not accept qiyas, but replace it with reason (aql
'Aql
‘Aql , is an Arabic language term used in Islamic theology or philosophy to the intellect the rational faculty of the soul or mind. It is the normal translation of the Greek term nous...
). 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'an
Qur'an
The Quran , also transliterated Qur'an, Koran, Alcoran, Qur’ān, Coran, Kuran, and al-Qur’ān, is the central religious text of Islam, which Muslims consider the verbatim word of God . It is regarded widely as the finest piece of literature in the Arabic language...
and Sunnah
Sunnah
The word literally means a clear, well trodden, busy and plain surfaced road. In the discussion of the sources of religion, Sunnah denotes the practice of Prophet Muhammad that he taught and practically instituted as a teacher of the sharī‘ah and the best exemplar...
.
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 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." Further, he extended the right to reason to others. Finally, qiyas is sanctioned by the ijma
Ijma
Ijmāʿ is an Arabic term referring to the consensus of the Muslim community. Various schools of thought within Islamic jurisprudence may define this consensus as that of the first generation of Muslims only; the consensus of the first three generations of Muslims; the consensus of the jurists...
, or consensus, amongst Muhammad's companions
Sahaba
In Islam, the ' were the companions, disciples, scribes and family of the Islamic prophet...
.
The success and expansion of Islam brought it into contact with different cultures, societies and traditions, such as those of Byzantines
Byzantine Empire
The Byzantine Empire was the Eastern Roman Empire during the periods of Late Antiquity and the Middle Ages, centred on the capital of Constantinople. Known simply as the Roman Empire or Romania to its inhabitants and neighbours, the Empire was the direct continuation of the Ancient Roman State...
and Persians. With such contact, new problems emerged for Islamic law to tackle. Moreover, there was a significant distance between Medina
Medina
Medina , or ; also transliterated as Madinah, or madinat al-nabi "the city of the prophet") is a city in the Hejaz region of western Saudi Arabia, and serves as the capital of the Al Madinah Province. It is the second holiest city in Islam, and the burial place of the Islamic Prophet Muhammad, and...
, 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 Abbasid
Abbasid
The Abbasid Caliphate or, more simply, the Abbasids , was the third of the Islamic caliphates. It was ruled by the Abbasid dynasty of caliphs, who built their capital in Baghdad after overthrowing the Umayyad caliphate from all but the al-Andalus region....
s, 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.
The Hanafi
Hanafi
The Hanafi school is one of the four Madhhab in jurisprudence within Sunni Islam. The Hanafi madhhab is named after the Persian scholar Abu Hanifa an-Nu‘man ibn Thābit , a Tabi‘i whose legal views were preserved primarily by his two most important disciples, Abu Yusuf and Muhammad al-Shaybani...
school of thought very strongly supports qiyas. Imam
Imam
An imam is an Islamic leadership position, often the worship leader of a mosque and the Muslim community. Similar to spiritual leaders, the imam is the one who leads Islamic worship services. More often, the community turns to the mosque imam if they have a religious question...
Abu Hanifa, an important practitioner of qiyas, elevated qiyas to a position of great significance in Islamic law
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
. 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.
The Shafi'i
Shafi'i
The Shafi'i madhhab is one of the schools of fiqh, or religious law, within the Sunni branch of Islam. The Shafi'i school of fiqh is named after Imām ash-Shafi'i.-Principles:...
school 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'an
Qur'an
The Quran , also transliterated Qur'an, Koran, Alcoran, Qur’ān, Coran, Kuran, and al-Qur’ān, is the central religious text of Islam, which Muslims consider the verbatim word of God . It is regarded widely as the finest piece of literature in the Arabic language...
and sunnah
Sunnah
The word literally means a clear, well trodden, busy and plain surfaced road. In the discussion of the sources of religion, Sunnah denotes the practice of Prophet Muhammad that he taught and practically instituted as a teacher of the sharī‘ah and the best exemplar...
. According to Shafi'i
Shafi'i
The Shafi'i madhhab is one of the schools of fiqh, or religious law, within the Sunni branch of Islam. The Shafi'i school of fiqh is named after Imām ash-Shafi'i.-Principles:...
, 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.
Imam Malik accepted 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".
Preference
Abu Hanifa developed a new source called istihsanIstihsan
Istihsan is an Arabic term for juristic "preference". Muslim scholars may use it to express their preference for particular judgements in Islamic law over other possibilities...
, 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 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". Though its main adherents were Abu Hanifa and his pupils (such as Abu Yusuf
Abu Yusuf
Yaqub ibn Ibrahim al-Ansari, better known as Abu Yusuf was a student of legist Abu Hanifah who helped spread the influence of the Hanafi school of Islamic law through his writings and the government positions he held.-Biography:...
), 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.
This doctrine was useful in the Islamic world outside 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
Najis
In Islamic law, najis are things or persons regarded as ritually unclean. According to Shi'a Islam, there are two kinds of najis: the essential najis which cannot be cleaned and the unessential najis which become najis while in contact with another najis....
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.
Public good
Imam Malik developed a tertiary source called al-maslaha al-mursalahIstislah
Istislah is a method employed by Muslim jurists to solve problems that find no clear answer in sacred religious texts. It is related to the term مصلحة Maslaha, or "public interest"...
, 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
Islamic jurists
These are the variations of Islamic jurists:#Muslim Islamic jurists - Ulema#Non-Muslim Islamic jurists - A non-Muslim Islamic scholar studying Islamic jurisprudence#Muslim non-Islamic jurists - A Muslim studying for example, Brazilian Law....
uses his wisdom to pursue public interest. This source is rejected by the Shafi'is.
Textual indication
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 legislationLegislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
.
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.
Reason
Shi'ite jurists 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.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
Baghdad
Baghdad is the capital of Iraq, as well as the coterminous Baghdad Governorate. The population of Baghdad in 2011 is approximately 7,216,040...
, Nishapur
Nishapur
Nishapur or Nishabur , is a city in the Razavi Khorasan province in northeastern Iran, situated in a fertile plain at the foot of the Binalud Mountains, near the regional capital of Mashhad...
, and Bukhara
Bukhara
Bukhara , from the Soghdian βuxārak , is the capital of the Bukhara Province of Uzbekistan. The nation's fifth-largest city, it has a population of 263,400 . The region around Bukhara has been inhabited for at least five millennia, and the city has existed for half that time...
) 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. 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
' , better known just as Ibn Rushd , and in European literature as Averroes , was a Muslim polymath; a master of Aristotelian philosophy, Islamic philosophy, Islamic theology, Maliki law and jurisprudence, logic, psychology, politics, Arabic music theory, and the sciences of medicine, astronomy,...
(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
Mufti
A mufti is a Sunni Islamic scholar who is an interpreter or expounder of Islamic law . In religious administrative terms, a mufti is roughly equivalent to a deacon to a Sunni population...
and can give fatwa
Fatwa
A fatwā in the Islamic faith is a juristic ruling concerning Islamic law issued by an Islamic scholar. In Sunni Islam any fatwā is non-binding, whereas in Shia Islam it could be considered by an individual as binding, depending on his or her relation to the scholar. The person who issues a fatwā...
. 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.
Common practice
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, 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 GodAllah
Allah is a word for God used in the context of Islam. In Arabic, the word means simply "God". It is used primarily by Muslims and Bahá'ís, and often, albeit not exclusively, used by Arabic-speaking Eastern Catholic Christians, Maltese Roman Catholics, Eastern Orthodox Christians, Mizrahi Jews and...
. 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
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
".
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
Sunnah
The word literally means a clear, well trodden, busy and plain surfaced road. In the discussion of the sources of religion, Sunnah denotes the practice of Prophet Muhammad that he taught and practically instituted as a teacher of the sharī‘ah and the best exemplar...
, 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.
Further reading
- Fadlalla, Mohamed; Lang, Peter. Das islamische Ehe- und Kindschaftsrecht im Sudan, Frankfurt, 2001. ISBN 3-631-37722-3
- Fadlalla, Mohamed. Die Problematik der Anerkennung ausländischer Gerichtsurteile: Beiträge zum Internationalen Zivilprozessrecht und zur Schiedsbarkeit. Tectum, 2004. ISBN 3-8288-8759-7
- Glassé, Cyril. The Concise Encyclopaedia of Islam, 2nd Edition. London: Stacey International, 1991. ISBN 0-905743-65-2
- Goldziher, Ignaz; translated by Hamori, R. Introduction to Islamic Theology and Law. PrincetonPrinceton, New JerseyPrinceton is a community located in Mercer County, New Jersey, United States. It is best known as the location of Princeton University, which has been sited in the community since 1756...
: Princeton University PressPrinceton University Press-Further reading:* "". Artforum International, 2005.-External links:* * * * *...
, 1981. ISBN 0-691-10099-3 - Hallaq, Wael. "Was the Gate of Ijtihad Closed?", International Journal of Middle East Studies, 16 (1): 3-41, 1984.
- Kamali, Mohammad Hashim. Principles of Islamic Jurisprudence, Cambridge: Islamic Text Society, 1991. ISBN 0-946621-24-1
- Kamali, Mohammad Hashim. Principles of Islamic Jurisprudence, 2003.
- Musa, Aisha Y. Hadith as Scripture: Discussions on the Authority of Prophetic Traditions in Islam, New York: Palgrave, 2008.
- Richard Potz: Islamisches Recht und europäischer Rechtstransfer, in: Europäische Geschichte Online, hrsg. vom Institut für Europäische Geschichte (Mainz), 2011, Zugriff am: 24.08.2011
External links
Sunni- Shari`ah and Fiqh
- SOURCE METHODOLOGY IN ISLAMIC JURISPRUDENCE by Taha Jabir Al 'Alwani
Shia
- Jurisprudence and Its Principles by Morteza MotahhariMorteza MotahhariAyatollah Murtaza Motahhari was an Iranian scholar, cleric, lecturer, and politician.Motahhari is considered among the important influences on the ideologies of the Islamic Republic, and was a co-founder of Hosseiniye Ershad and the Combatant Clergy Association...
- The Principle of Ijtihad in Islam by Morteza MotahhariMorteza MotahhariAyatollah Murtaza Motahhari was an Iranian scholar, cleric, lecturer, and politician.Motahhari is considered among the important influences on the ideologies of the Islamic Republic, and was a co-founder of Hosseiniye Ershad and the Combatant Clergy Association...
- The Role of Ijtihad in Legislation by Morteza MotahhariMorteza MotahhariAyatollah Murtaza Motahhari was an Iranian scholar, cleric, lecturer, and politician.Motahhari is considered among the important influences on the ideologies of the Islamic Republic, and was a co-founder of Hosseiniye Ershad and the Combatant Clergy Association...