Sources of Islamic Law and Teachings.pdf

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Sources of Islamic
Law and Teachings
(5466
ACKNOWLEDGEMENTS
This postulation is devoted to: The Allah, my Creator and my Master, and envoy,
Skilling.pk Diya.pk Stamflay.com
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Mohammed (May Allah favor and give him), who showed us the motivation behind life.
My
country Pakistan, the hottest womb; Allama Iqbal Open University, Islamabad; my
second
wonderful home; My awesome guardians, who never quit giving of themselves in
incalculable ways, My dearest friend, who drives me through the valley of dimness with
light of trust and support, My cherished siblings and sisters; especially my dearest
sibling, who remains by me when things look disheartening, My beloved Parents: whom I
can't compel myself to quit loving. All the general population in my life who touch my
heart, I commit this research.
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ABSTRACT
The primary sources of Islamic law are the Holy Book (The Quran), The Sunnah (the
traditions or known practices of the Prophet Muhammad), Ijma' (Consensus), and Qiyas
(Analogy). In this section of the research guide specifically presents the primary sources
that include the actual rules of law created by the God and the Prophet Muhammad. The
following below websites and books present English translations of the Qur'an and the
Sunnah and other sources as well The Noble Quran has been translated into the modern
English Language by Dr. Muhammad Taqi-ud-Din Al-Hilali, Ph.D. & Dr. Muhammad
Muhsin Khan. This online edition does not include Arabic text, footnotes or hadith.
Altafsir is a completely free, non-profit website providing access to the largest and
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greatest online collection of Quaranic Commentary (tafsir or tafseer), translation,
recitation and essential resources in the world. Translations of the Holy Qur’an in various
languages. Please note that not all of the following translations are authentic. The Qur'an
is the principal source of Islamic law, the Sharia. It contains the rules by which the
Muslim world is governed (or should govern itself) and forms the basis for relations
between man and God, between individuals, whether Muslim or non-Muslim, as well as
between man and things which are part of creation. The Sharia contains the rules by
which a Muslim society is organized and governed, and it provides the means to resolve
conflicts among individuals and between the individual and the state. There is no dispute
among Muslims that the Qur'an is the basis of the Sharia and that its specific provisions
are to be scrupulously observed. The Hadith and Sunna are complementary sources to the
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Qur'an and consist of the sayings of the Prophet and accounts of his deeds. The Sunna
helps to explain the Qur'an, but it may not be interpreted or applied in any way which is
inconsistent with the Qur'an.
Introduction
The Qur'an contains a variety of law-making provisions and legal proscriptions
interspersed throughout its chapters (suwar) and verses (ayat). A number of rules exist for
interpreting these provisions, such as the position of a given ayah within the context of
the surah, which in turn is interpreted in accordance with its place in the sequence of
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revelations, its reference to other revelations, and its historical context in relation to
particular conditions which existed at the time of the given revelation. These and other
rules are known as the science of interpretation (ilm usul aI-fiqh). According to these
rules, for example, one initially is to refer to a specific provision and then to a general
provision dealing with a particular situation. No general provision can be interpreted to
contradict a specific provision, and a specific rule will supersede a general proposition. A
general provision, however, is always interpreted in the broadest manner, while a specific
provision is interpreted in the narrowest manner. Reasoning by analogy is permitted, as
are applications by analogy, except where expressly prohibited. Simplicity and clear
language are always preferred. Similarly, the clear spirit of certain prescriptions cannot
be altered by inconsistent interpretations. A policy-oriented interpretation within the
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confines of the rules of jurisprudence is permissible and even recommended, as is the
case with the doctrine of ijtihad (progressive reasoning by analogy).
"Avoid condemning the Muslim to Hudud whenever you can, and when you can find a
way out for the Muslim then release him for it. If the Imam errs it is better that he errs in
favor of innocence (pardon) than in favor of guilt (punishment)."
The Prophet's Hadith
"Were people to be given in accordance with their claim, men would claim the fortunes
and lives of (other) people, but the onus of proof is on the claimant and the taking of an
oath is incumbent upon him who denies."
The Prophet's Hadith
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Muslim scholars do not consider Islam to be an evolving religion, but rather a religion
and legal system which applies to all times. It is, therefore, the application that is
susceptible to evolution. Indeed, the provisions of the Qur'an are such that by their
disciplined interpretation, with the aid of the Hadith and Sunna and other sources of
interpretation, Islam can, as intended, provide the solution to contemporary social
problems.
Fourteen centuries ago Islam was a spiritual, social, and legal revolution. Its potential for
effecting progress remains unchanged. This is essentially the belief of enlightened
fundamentalist Muslims. Islamic fundamentalism is not, therefore, a regressive view of
history and contemporary reality. Islam at the height of its civilization, between the
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seventh and eleventh centuries, was neither repressive nor regressive. It was a
progressive, humanistic, and legalistic force for reform and justice.
Muslim law is a personal law which is applied only on Muslims. It is applied by courts in
India to mohamedans not in all, but in some matters only. Muslin law in India means that
portion of Islamic civil law which is applied to Muslims as a personal law. Muslim law is
the body of law which is derived from the Quran and other recorded saying of the
Muslims prophet Muhammad. However Islamic law talked about man's duties rather than
his rights. In the religious sense Islam means submission to the will of god' & in secular
sense Islam means the establishment of peace.
The origin of Muslim law is Arabia where Mohammad enunciated Islam. The object of
Islam is to create a sense of obedience and submission to Allah. His ordinances and
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thereby to walk on right path. Those who follow this path are Muslim. According to Amir
Ali Muslim is any person who professes the religion of Islam, in other words accepts the
unity of god and prophetic character of Mohammad. Thus to be a Muslim only two things
is required- one is that Allah is one and the second is the prophet hood of Mohammad.
Islamic law is a branch of Muslim theology, giving practical expression to the faith,
which lays down how Muslim should conduct himself through his religion, both towards
god and towards other men.
Muslim law consists of the injunction of Quran, of the traditions introduced by
the practice of the prophet (sunna), of the common opinion of the jurists (ijma), of the
analogical deductions of these three (qiyas). Further , it has been supplemented by the
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juristic preference (Istihsan), public policy (Istislah), precedent (Taqlid) and independent
interpretation (Iltihad).
Sources
Sources of Muslim law is classify into two categories that is primary sources and
secondary sources.
Primary Sources
Primary sources are those on which Muslim law relied on. These sources are the
foundation of Muslim law. Primary sources of Muslim law are:
• Quran
• Sunnat
• Ijma
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• Qiyas
1. Quran
Muslim law is founded upon Al-Quran which is believed by the muslamans to have
existed from eternity, subsisting in very essence of god. The word Quran has been
derived from the Arabic word Quarra which means to read. The Quran is, Al-furqan i.e.,
one showing truth from falsehood and right from wrong. The word Quran which is the
‘divine communication' and revelation to the prophet of Islam is the first source of
Muslim law.
Quran is a primary source of Muslim law, in point of time as well as in importance. The
Islamic religion and Islamic society owes its birth to the word of Quran. It is a paramount
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source of Muslim law in point of importance because it contains the very word of god
and it is foundation upon which the very structure of Islam rests Quran regulates
individual; social, secular, and spiritual life of Muslims.
It contains the very words of god as communicated to prophet mohammad through angel
Gabriel. It was given to the world in fragmentary forms, extending over a period of 23
years. It originally had for its objects repealing objectionable customs, such as, usury,
unlimited polygamy and gambling, etc., and effecting social reforms, such as raising the
legal status of women and equitable division of the matters of inheritance and succession.
The Quran can be no way altered or changed, thus, even the courts of law have no
authority to change the apparent meaning of the verses as it does have an earthly origin.
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This view was held in Aga Mohammad Jaffer v. koolsom Beebee (1895). But whenever
the Quran was silent on any particular matter, guidance was taken from the ‘sunnat'.
2. Sunnat
The word sunna means the trodden path & as this meaning shows it denotes some kind
of practices and precedent. It is belief of Muslim that revelations were two kinds-
manifest (zahir) and internal (batin). Manifest revelation is communication which is made
by angel Gabriel under the direction of god to Mohammad in the very words of god.
Quran is composed of manifest revelations.
Internal revelation is opinions of the prophet which is delivered from time to time on
questions that happened to be raised before him. Sunna means the model behavior of the
prophet. The narrations of what the prophet said, did or tacitly allowed is called hadis or
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traditions. The traditions, however, were not reduced to writing during lifetime of
Mohammad. They have been preserved as traditions handed down from generation to
generation by authorized persons. The importance of hadith as an important source of
Muslim law has been laid down in the Quran itself.
Kinds Of Traditions: The Traditions Are Of Two Kinds:
1. Sunnat
2. Ahadis
These two have been classified into the following three classes on the basis of mode or
manner in which it has actually originated:
• Sunnat-ul-fail i.e., Traditions about which prophet did himself.
• Sunnat-ul-qaul i.e., Traditions about which he enjoined by words.
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• Sunnat –ul-tuqrir i.e., The things done in his presence without his disapproval.
The three class of Ahadisare:
• Alhadis -i-mutwair i.e., Traditions that are of public and universal propriety and are
held as absolutely authentic. In such hadis the chain is complete.
• Ahadis -i-mashhoor i.e., Traditions which known to a majority of people, do not
possess the character of universal propriety.
• Ahadis-i-wahid i.e., Traditions which depend on isolated individuals.
Thus two sources, namely, the Quran and Sunna may thus be said to form the
fundamental roots of Islamic law.
3. Ijma
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It was equally binding on the people to act on a principle (not contrary to the Quran or
hadis ) which had been established by agreement among highly qualified legal scholars of
any generations. Ijma has been defined by Sir Abdul Rahim as agreement of the jurists
among the followers of Prophet Mohammad in a particular question of law. The validity
of ijma, as containing a binding precedent, is based upon a hadis of the prophet which
says that god will not allow His people to agree on an error. Ijma thus become a source of
law. According to the classical theory, failing Quran and traditions, and consensus of
opinion amongst the companions of the prophet is recognized as the best guide of law.
Thus it is the third source of law, both in point of time and importance. The authority of
ijma as a source of Muslim law is also founded on Quranand Hadith. The law is
something living & changing. The aim of law is to fulfill the needs of the society. The
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principle of ijma is based upon the text i.e. god will not allow His people to agree on an
error and whatever Muslims hold to be good is good before god. Muslims religion does
not admit the possibility of further revelation after the death of the prophet, the principle
of ijma is the only authority for legislation in the present Muslims system.
Kinds Of Ijma
Ijma is of three kinds:
• Ijma of the companions of the prophet – is the consensual opinion of companion
which is universally acceptable, throughout the Muslim world and is unrepealable.
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• Ijma of jurists- is the consensual opinion of jurists which is believed that its best ijma
after ijma of companions. All the jurists should sit together and discussed the
reasoning, and majority of the jurists is of the view that unanimity to form ijma.
• Ijma of the people – is the opinion of Muslim population as a whole may have any
importance but in actual practice ijma of Muslim public had no value with regard to
legal matters but in matters related to religion, prayer and other observances have
more value attached to it.
Ijma cannot be confined to any particular period or country. It is completed when the
jurists, after due deliberation, come to a finding .it cannot be questioned or challenged by
any individual jurist. Ijma of one age may be reversed or modified by the ijma of the
same or subsequent age.
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4) Qiyas
This is a last primary source of Muslim law. Qiyas means reasoning by analogy from
above 3 sources i.e., Quran, Sunna and Ijma. In Qiyas rules are deduced by the exercise
of reason.
Qiyas may be defined as a process of deduction by which the law of the text is applied to
cases, which though not covered by the languages are governed by reason of text. Thus, it
should be noted that Qiyas does not purport to create a new law, but merely to apply old
established principles to new circumstances.
Conditions of Validity of Qiyas:
• The original source from which Qiyas is deduced must be capable of being extended,
that is it should not be of any special nature.
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• The original order of the Quran or hadith to which the process of Qiyas is applied
should not have been abrogated or repealed.
• The result of Qiyas should not be inconsistent with any other verse of Quran or any
established Sunna.
• Qiyas should be applied to ascertain a point of law and not to determine the meanings
of words used.
• The deduction must not be such as to involve a change in the law embodied in the
text.
Thus it can be said that Qiyas is weak source of law and rules analogically deduced do
not rank so high as authority, as those laid down by Quran and Hadith or by consensus of
opinion (ijma).the reason is that with respect to analogical deductions one cannot be
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certain that they are what the law giver intended. Such deduction always rest upon the
application of human resources which always are liable to err
Secondary Sources
These sources are not basic sources of Muslim law but the supplementary sources of
Muslim law. The secondary sources of Muslim law are:
• Urf or Custom
• Judicial decision
• Legislation
• Equity, Justice, & Good conscience
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Urf or Custom
Before the emergence of Islam in Arabia , customs were the basis of entire social life,
religion, morality, trade and commerce. Custom has not been recognized as a source of
law in a Muslim law. However, it cannot be denied that custom has always been given a
place under Muslim law, if it is in conformity with Muslim law. For example, prophet
mohammad never repeal the whole of the pre-Islamic customary law of Arabia. In
various matter of Muslim law, custom play a significant role when the matter is relating
to their:
a.agricultural land;
b.testamentary succession among certain communities; and
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c. charities other than wakf, because these matters have not been included in the section
2 of Shariat Act,1937. Custom influenced the growth and formation of shariah in
several ways:
a.A number of texts, particularly traditions are based upon usages.
b.A part of the shariah based upon tacit or silent approval of the prophet comprises
many of Arab customs.
c.Imam malik says that the customary conduct of the citizen of medina was a sufficient
ijma to be relied upon in the absence of other texts.
Pre- Condition Of Valid Custom
• Custom must be territorial.
• It must be existing from memorable time i.e. ancient.
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• It must be continuous and certain and invariable.
• Custom should not oppose the public policies.
• Custom must not in contravention of Quran and Ijma.
Judicial Decision
These includes the decisions of privy council, the supreme court & high court of India,
Judges explain what law is. These decisions are regarded as precedents for future cases.
Judicial decision is one of the distinguish characteristic of English law. In India, the plan
of Warren Hastings of 1772 made provision that it was only judiciary which introduced
new set rules in personal laws of Hindus and Muslims.
There are number of judicial decisions which have given new dimension to Muslim
law:
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• In Maini Bibi v. Choudhry Vakil Ahmad, the privy council held that a widow
possesses the right to retain the property of her husband till her dower money was
paid
• In Bai Tahira v. Ali Hussain, the Supreme Court gave a new line of approach to the
law of maintenance. The Supreme Court held that a woman will be entitled for
maintenance under section 125 of criminal procedure code even though she has
received a lump-sum amount under her customary law. A similar view also taken in
Shah Bano's case.
It may be concluded therefore, that to some extent, the courts in India have tried to
modify the rules of Muslim personal law as applied in India. Unless overruled or negative
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by some legislative enactment, these rules through the decisions, continue to be a source
of Muslim law.
Justice, equity and good conscience
The doctrine of equity, justice & good conscience is regarded as one of the source of
Muslim law. Abu Hanifa, the founder of hanafi sect of Sunni, expounded the principle
that rule of law based on analogy could be set aside at the option of the judge on a liberal
construction or juristic preference to meet the requirements of a particular case. These
principles of Muslim law are known as Istihsan or juristic equity. Istihsan literally
means approbation and may be translated as liberal construction or juristic preference.
This term was used by great jurist Abu Hanifa to express the libert that he assumed of
laying down the law, which in his discretion, the special circumstances required, rather
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than law which analogy indicated. Several areas of Muslim were modified so as to meet
the changing conditions in India.
Legislation
In India, Muslims are also governed by the various legislation passed either by the
parliament or by state legislature. The following are the examples of legislation in India.
• The usurious loans act, 1918
• Religious toleration act
• Freedom of religion act, 1850
• The mussalman wakf validating act, 1930
• The shariat act, 1937
• Dissolution of Muslim marriage act, 1939
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These acts have considerably affected, supplemented and modified the Muslim law. In
1986 an act i.e. Muslim Woman (Protection of Rights on Divorce) Act, 1986 to provide
separate law in respect of divorced Muslim women was enacted by Indian parliament.
According to the need of time and circumstances Indian legislature enacted the law to
fulfill the need.
Conclusion
These four sources namely Quran, Sunna, Ijma and Qiyas are the primary sources of law.
Muslim law mainly based on verses of Quran and practices of hadith. There is secondary
source of Muslim law which subsequent of it. Sects of shias does not accept the Qiyas as
source of Muslim law. It is due to the contribution of all that an orderly and systematic
theory of personal laws of Islam came into existence which govers the Muslim
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community.
Ijma is a secondary source of Islamic law. It refers to the decision related to any issue
which was not existing in the time of our holy prophet Muhammad (Peace be upon him).
If anything has been discussed in the Holy Quran or any hadith is available regarding any
issue, the Ijma will not be valid for that issue. Ijma can be done with the consensus of
Muslim scholars. Trying to take consensus in the issue which is already discussed in the
holy Quran or hadith will lead to Shirk (association in the oneness of ALLAH Almighty).
In the same way, Ijma is not allowed to do the same issue where Ijma is already done. A
great example of the Ijma is the opinion of the religious scholars on test-tube babies.
Qiyas is the last source of Islamic law and it is also a secondary source. It is done where
all the above sources are silent. In Qiyas, the scholars try to find out all the relative
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information from the holy Quran and hadith. The records of Ijma are also checked
because in case if Ijma has done, Qiyas will not be valid for the same issue. Then all the
merits and demerits are checked in the light of Islamic laws. Scholars match the unknown
with the known and find out the similarities to come to any decision. A common man
can’t go for Qiyas as only great scholars who have in-depth knowledge of Shariah are
eligible for Qiyas.
References
1.Mohammedan Law By Aqil Ahmad, 25th Edition 2013
2.Muslim Law By Syed Khalid Rashid, 3rd Edition
3.Muslim Law By M.A. Qureshi, Edition 2002
4.Principles Of Mohammadan Law By Mulla
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