PS201-Chapter three

MOHD GHADAFI BIN SHARI
3.0 SOURCES OF SHARIAH

It is reported that when Muaz bin Jabal was sent as the
Prophet’s delegate to Yemen, he was asked how he
would decide matters referred to him. He replied: I would
refer to the Holy Quran. The Prophet then asked him:
What would you do if you cannot find a definite ruling in
the Quran? Muaz replied: I will look into the Sunnah of
the Prophet. Once again the Prophet asked: How if you
do not get a definite ruling therefrom? Muaz replied: I
will then use my reasoning to arrive at a solution. The
Prophet was pleased with this answer and gave praise to
Allah for giving him such a worthy representative.

 Prime sources of Islamic law:
1) The Holy Quran
2) The Sunnah
 Secondary sources:
1) Ijma’. Allah says: ‘Obey God and obey the
Prophet and those amongst you who have
authority’
2) Qiyas (Analogical reasoning/
deduction)

 Istihsan (Juristic Preference)
 Maslahah Mursalah (Consideration of public
interest)
 Istishab (Presumption of continuity)
 Urf (Custom)
 Qawl al-Sahabi (Opinions of companions)
 Sad al-Zara’i (Blocking the means)
 Shar’u qablana shar’u lana (Revealed laws of
the previous prophets of Islam)

 O you who have believed, obey Allah and obey
the Messenger and those in authority among
you. And if you disagree over anything, refer it to
Allah and the Messenger, if you should believe in
Allah and the Last Day. That is the best [way]
and best in result. (An-Nisa’ : 59)

3.1 Identify the sources of Shariah
∗ 3.1.1 Describe the primary and
secondary sources of Shariah
a. Primary sources
i. Al-Quran
ii. As-Sunnah

The 1st
and main source of Islamic law.
The word Quran is derived from the root
word of qa ra ‘a.
From literal meaning; Al-Qur’an means
reading or recitation.
From technical meaning; Al-Qur’an can
be defined as the Book containing the
words of Allah revealed to Prophet
Muhammad s.a.w. in Arabic &
transmitted to us by continuous
testimony, @ tawatur.

Features of Al-Qur’an
1. It is the actual Word of Allah; the wording &
meaning of Al-Qur’an were revealed for the
benefit of all mankind.
2. The Qur’an was revealed in Arabic, the language
that was chosen by Allah for His revelation.
3. The Qur’an was transmitted with continuous
testament (mutawatir). This means that the Qur’an
was transmitted from the Prophet s.a.w. to the
next generation.
4. The Qur’an is Allah’s eternal miracle revealed to
Prophet Muhammad s.a.w. for all succeeding
generations.
5. It is complete & comprehensive.

The Makkah Revelations
• 19 out of the total 30 parts was revealed during
the 1st
12 & a half years of the Prophet’s residence
in Makkah
• Emphasizes on the topics related to belief, the
Oneness of Allah (Tawhid), the necessity of the
Prophethood of Muhammad s.a.w., the hereafter,
arguments with unbelievers & their invitations to
Islam.

The Madinah Revelations
• 11 remainders parts of the Quran were revealed after
the Prophet’s migration to Madinah over a period of
just about 9 and half years.
• Comprised legal rules & regulations of the various
aspects of life in the new environment of Madinah.
• Emphasis to principles of regulation of the political,
legal, social, organization of the family & economic
life of the new community.
• Addressed the need for rules to regulate matters of
war & peace, status & rights of conquered people, as
well as the principles of government.

Classification of the Verses of the Qur’an
a)Verses related to the Islamic belief system (‘Aqidah)-
which include the belief in Allah, His Prophet s.a.w.,
belief in the Day of Judgment & other related theme.
b)Verses related to the moral & ethics (Akhlaq) – which
include the good ethical system that must be upheld &
evil deeds, which must be avoided
c)Verses related to the stories of the earlier Prophets of
Allah a.s. & the previous people (al-qasas al-Qur’an)
which can be taken as a lesson for everyone
d)Verses related to the sayings & doings of the
individuals & his relations with others which are also
called ayat al-ahkam @ the legal verses of the Qur’an

Classification of ayat al-ahkam @ the legal verses of the
Qur’an
1.The concise injunction (al-ahkam almujmalah)
• Injunctions concerning prayers & Zakah
• Injunctions related to qisas (the law of equality in
punishment)
• Injunctions related to commercial transactions & the
prohibition of usury (riba’)
1.The concise and detail injunctions (al-ahkam al-mujmalah
wa al-mufassalah)
• Contains verses mentioned the commandments in brief,
while others are mentioned them in detail. These
injunctions are clarified by the Sunnah of the Prophet
s.a.w.
• E.g. injunctions on war, peace, jihad, prisoners of war,
booty & relations with non-Muslims. These details are not
merely left to the Sunnah alone but Ijtihad can also be a
method to find suitable solutions to unexpected problems

3.The detailed injunctions (al-ahkam al-mufassalah)
• Injunctions which give complete details of the
commandments, leaving no room for ijtihad.
• E.g. hadd punishments, qisas, unintentional
homicide, murder, theft, robbery, adultery,
defamation and distribution of inheritance.
a)Verse related to the penalty for unintentional killing
b)Verse related to the distribution of inheritance
c)Verse related to the punishment for adultery

Fundamental Principles of Guidance Derived from
the Injunctions of the Qur’an (al-Qawaid wa al-
Mabadi al-ammah fi al-Qur’an)
a)Principle of justice
b)Principle of individual accountability
c)Principle of consultation
d)Principle of acquiring property
e)Principle of equality
f)Principle of flexibility
g)Principle that necessity renders prohibited things
permissible (al-darurah tubih al-mahzurat)

Literal; means a clear path or a beaten track
In pre Islamic Arabia; the Arabs used the word
Sunnah in reference to the ancient & continuous
practice of the community, which they inherited from
their ancestors.
The scholars of Hadith; Sunnah refers to all that is
narrated from the Prophet s.a.w. including his
actions, sayings & whatever he has tacitly approved.
Sunnah includes the sayings, doings & tacit
approvals of the Prophet s.a.w.
Hadith is a narration of the sayings of the Prophet
s.a.w.

Authority of Sunnah
1.In the following verse, Allah clarified the fact that
whatever originated from the Prophet s.a.w. does
not come out of his own desire, but it is an
inspiration from Allah. This fact indicates the role of
Sunnah as the second source of Islamic law;
“Nor does he say (ought) of his own desire. It is no
less than inspiration sent down to him”
(Al-Najm ; 3-4)
1.The Qur’an commands the believers to follow the
instructions and injunctions of the Prophet s.a.w. :
“ And whatever the Messenger gives you, take
(observe) it & whatever he forbids you, abstain
from it” (Al-Hasyr; 59:7)

3. Islam also emphasizes the need to refer the judgment
to Allah, which means resourcing to the Qur’an &
referring it to the messenger means resourcing to the
Sunnah whenever there is a dispute or problem;
“Obey Allah & obey the Messenger & those who are in
charge of affairs among you. Should you happen to
dispute over some matter, then refer it to Allah & to
the Messenger” (Al-Nisa’: 59)
4.The Qur’an also orders the believers to be pleased with
the judgment of the Prophet s.a.w. & not to dispute about
them:
“But no, by your Lord, they can have no Faith, until they
make you (Muhammad s.a.w.) judge in all disputes
between them, & find in themselves no resistance
against your decisions, & accept (them) with full
submission” (Al-Nisa’;65)

Role of the Sunnah with regards to the Qur’an
1.The Sunnah reemphasizes & reiterates the
injunctions of the Qur’an
2.The Sunnah explains & elaborates the concise
injunctions of the Qur’an.
3.The Sunnah qualified (muqayyadah) the unqualified
(mutlaq) verses of the Qur’an & specified (takhsis)
the general (‘amm) injunctions of the Qur’an.
4.The Sunnah may enact rulings on which the Qur’an
is silent.

Types of Sunnah
1.Verbal Sunnah (Qawli) – consists of the sayings of
the Prophet s.a.w. on any subject. E.g. hadith which
states that livestock is liable to zakah
2.Actual Sunnah (Fi’li) – consists of the Prophet s.a.w.
deeds & actual instructions. E.g. the way he
performed the solat, fasting, rituals of the hajj, @
transactions that he concluded such as sales & loan
giving.
3.Tacitly approved (Taqriri) – inferred from his silence
@ lack of disposal, @ from his expressed approval
& verbal confirmation.

∗ b. Secondary sources
i. Ijma’
ii. Qiyas
iii. Istishab
iv. Istihsan
v. Masalih Mursalah
vi. ‘Uruf

• Literally; Ijma’ is the verbal noun of the Arabic word
ajma’ that has 2 meaning:
Determination =>possible from 1 person
Agreement upon a matter =>requires 2 or more
person
• Technically; the consensus of mujtahids from the
ummah of Muhammad s.a.w, after the death, in a
determined period upon a rule of Islamic law

Condition for the validity of ijma’
1.The agreement @ consensus must take place among
mujtahids that is those who have attained the status of ijtihad.
2.The agreement must be unanimous, that is among all the
mujtahids.
3.All the jurists participating in ijma’ must be from the ummah of
Muhammad s.a.w.
4.The agreement @ consensus must have taken place after the
death of the Prohet s.a.w.
5.The agreement must be among the mujtahids of a single
determined period, even if some of the jurist of the following @
subsequent period opposed them.
6.The agreement must be upon a rule of law the hukm shar’i.
7.That the mujtahids should have relied upon a sanad for
deriving their opinion.
8.The death of those jurists who participated in the ijma’, either
explicitly @ by silence, is not a condition for the validity of ijma’
according to the majority of the jurists.
9.That the ijma’ should have been transmitted to the later jurists
by way of tawatur.

Types of ijma’
1.Explicit ijma’ @ ijma’ qawli
 legal opinions of all the jurists of 1 period converge in
relation to a legal issue & each 1 of them states his
opinion explicitly
2.Tacit ijma’ @ ijma’ sukuti
 Some mujtahids, 1 @ more issue a verdict on a
legal issue & the rest of the mujtahids come to know
of it during the same period but they keep silent; they
neither acknowledge it nor refute it expressly

• Literally; measuring @ estimating 1 thing in term of
another.
• Technically; the hukm of an existing case found in the
texts of the Quran, the Sunnah @ ijma’ to a new case
whose hukm is not found in these sources on the
basis of a common underlying attribute called the ‘illah
of the hukm
The pillars of qiyas
1.asl =>the case ( set of facts ) mentioned in the text
2.hukm =>the set of facts mentioned in the text
3.‘illah =>the underlying cause that has led to the hukm
4.far’ =>the new case for which the hukm has mot been
explicitly mentioned & which needs a hukm

Examples of qiyas
The prohibition of khamr is laid down in the Quran. The text
prohibits khamr along with a statement of the disaster it leads
to, that is, enmity & hatred among people. Now khamr,
according to some jurist, is the name of an intoxicating liquor
made from grape juice, called wine. The Arabic term khamr in
their view does not include other intoxicating liquors like
whiskey & beer that are made from other substances. The
other intoxicants according to the Hanafis are prohibited
separately by the texts of the Sunnah.
 Explanation
asl @ maqis ‘alayh => khamr
hukm al – asl => prohibition of khamr
‘illah => intoxicating
far’ @ maqis => each 1 of the intoxicants other than khamr
hukm al – far’ => prohibition of whiskey @ related

• 'Umar ibn al-Khattab said to the Messenger, may Allah bless
him and grant him peace, "Messenger of Allah, I did
something terrible. I kissed while I was fasting." The
Messenger of Allah said, "Do you think that you can rinse
your mouth with water while you are fasting?" He replied,
"There is no harm in it." The Messenger of Allah said, "So
fast." Do you not see that the Messenger of Allah made a
connection between rinsing the mouth with water while
fasting and kissing while fasting? He pointed out the
similarity between them since both of them could lead to
something which would break the fast or not. It does not in
itself break the fast. Breaking the fast is possible if it leads to
that. Because of the similarity between them they are equal
in judgement. As rinsing does not break the fast - and that
was known to 'Umar - and so the kiss does not break it.

Al-Muzani, the companion of ash-Shafi'i, summarises the
idea of analogy and the action of the Companions in it
excellently:
"The fuqaha' from the time of the Messenger of Allah,
may Allah bless him and grant him peace, until today have
used analogies in all judgements in their deen and they
agreed that the like of what is true is true and the like of
what is false is the false, and no one is permitted to deny
analogy because it is the resemblance and similarity of
things."

• Malik used to make analogies based on judgements
derived directly from texts in the Qur'an and judgements
derived directly from hadiths of the Prophet.
• He also drew analogies based on the consensus of the
people of Madina because, as we have seen, he
considered that to be the Sunnah.
• Malik also used to utilise the fatwas of the Companions as
a basis for analogy, as we saw in the case of the wife of
the missing husband in which he followed the fatwa of
'Umar about the divorced woman who was not aware of
having been taken back by her husband, which was
confirmed by the agreement of the people of Madina on
similar cases.

• The benefit in this is clear and evident in three ways. Or
it might be said that its fruits appear in these three
aspects:
1. Malik based analogy on questions which the Companions
had deduced and used them for analogy. So he used them as
a basis for analogy in similar questions, relying on the
Companions' fatwas .
2. Comparing the secondary ruling to a principle known by
analogy expands the area of analogy because in this case the
cause by which the first analogy was established has been
forgotten, and a new comparison is formed between this
secondary ruling and the other which is considered as its
principle. So the cause of the judgement in defined in it and
established in the secondary ruling since they share in this
quality. Indeed, the case will end in linking the new cause with
the old cause. Analogy is the same, but the mujtahid is not
burdened with the effort of investigation into the basis of the
first analogy. Rather he considers the established secondary
ruling to be a confirmed principle on which to base analogy.

3. This subject expands deduction in a school of one of
the mutjahidun because he considers the secondary
rulings in which the principles were deduced which he
does not use for comparison and by that the scope
of fiqh is expanded and ijtihad in it and deduction based on
it grows and fatwas are not constricted or difficult. Indeed,
the area of deduction is open and the path is improved.

Presumption of Continuity
• Literally; continuance of companionship
• Technically; presumption of continuance of an earlier rule
or its continued absence
• Ibn al-Qayyim defined it as being the continuation of
what is established or the negation of what does not
exist, i.e. it is the judgement, negative or positive,
continues until there is evidence of a change of state.
This continuance is not proved by positive evidence, but
by the absence of the existence of new evidence.
• Al-Qarafi defined it: "Istishab means the belief that the
past or present matter must be assumed to remain as it
is in the present or future."

• This means that the past judgement and the knowledge of it
makes one assume that it will continue in the future, like the
one for whom ownership is affirmed by something like
purchase or inheritance.
• So ownership continues until there exists something to
negate it. It is also like someone who is known to be alive at
a specific time. It remains probable that he is still alive until
evidence is established to the contrary and something
establishes his death. So an absent person is judged to be
alive until there is something to indicate he has died and
then the qadi judges him to be dead.

• Al-Qarafi said: "Istishab was considered a proof by Malik as
well as the Shafi'i, al-Muzani." He mentioned that he differed
from the Hanafis in that. Then he mentioned that the evidence
that it is a proof is that it probable that an existing state will
continue to exists until there is something to negate it. Such
probability is evidence in action: like testimony. It is a binding
proof for all. If it were ignored or not acted upon, rights would
be lost since there would be no means to establish them.
• According to this, istishab was considered proof by Malik as
long as there was no evidence to contradict it. When a person
is absent and it is not known whether he is alive or dead, he is
considered to be alive until the Qadi judges that he is dead
and he is deemed to be alive in the period between the
absence and being judged to be dead.

• Al-Qarafi mentioned that the Hanafis differ from the Malikis in
that and some of them do not consider istishab to be a proof in
its own right. However presumption of innocence is a firm
principle which is relied on. It is like that when ownership is
affirmed. It only ceases by a eliminating cause. All of this is
involves the presumption of the continuation of the state. So
most Hanafis who disagree with them say that continuation of
the state is a defensive proof and not evidence of affirmation.
That is why they permit a settlement after denial even though
the claimant takes a reimbursement when the right has not
been established.
• If istishab had been a proof which obliged rejection and
affirmation, that settlement would not have been permitted as
long as there was no evidence. So the evidence of the
ownership of one against whom the claim is made would be
affirmed by the principle of the continuation of the state, but the
Hanafis, who permit the settlement, said that denial interferes
with the principle of innocence. As they both have a right, each
of them makes a settlement for a right permissible in respect of
him.

The principles
1.The original rule for all things is permissibility, that is,
the presumption is that all things are permitted, unless
prohibited by the shariah
2.Bara’ah asliyyah; there is no presumption of liability
against anyone & all liability has to be proved
3.Certainty does not give way to doubt; once a thing is
established beyond doubt, it can only be set aside
through an equally certain evidence

Some scholars divided
istishab into two categories:
1. Presumption of innocence. It is the continuance of inviolability
until there is evidence which establishes a right, like the state of
the one who denies a claim. His state is that of presumption of
innocence. Ibn al-Qayyim mentions the dispute of the fuqaha' in
it, saying that the Hanafis apply it to denial rather than
affirmation. Malik, ash-Shafi'i and Ibn Hanbal accept it as
absolute proof.
2. The continuity of the attribute. A judgement continues until its
opposite is affirmed. Ibn al-Qayyim said that it is a proof about
which the fuqaha' do not argue, but we disagree with Ibn al-
Qayyim. The Hanafis said that the continuity of the attribute is a
negative rather than affirmative proof of denial, i.e. that the
attribute affirms the continuity of the condition, but it does not
affirm a new right by it.

• Literally; to consider something good
• Technically; moving away from the implications of
analogy to an analogy that is stronger than it, @ it is
the restriction of analogy by an evidence that is
stronger than it
Example
Analogy requires that ritually pure water should be
used for ablution. In the case of wells in which dirt
@ carcasses of animals have fallen, following strict
analogy would mean the non – use of these wells, &
this would cause hardship to the people. The
principle of necessity requires that use of these
wells be permitted. This is done after observing
formal cleaning methods.

• There are many sources which state that Malik used to
employ istihsan.
• Al-Qarafi mentioned that sometimes he used to give fatwa on
the basis of istihsan and he said about it, "Malik says it in a
number of questions about artisans who work on objects
giving an guarantee of their work and those who transport
food and condiments giving a guarantee as opposed to
others.“
• Malik used analogy but made it subject to general and partial
benefit, so he only applied it when he was sure that there was
no harm in its application; otherwise he left it. For Malik it was
a basic rule that analogy is subject to benefit. That is why the
underlying principle of Maliki fiqh is benefit, as we will
explain.

• Judgements based on istihsan or which make it the
deciding factor when weighing up different proofs
are numerous in the Maliki school, as ash-Shatibi
says in al-Muwafaqat.
• One example of this is loans. A loan might be
considered to be usury because a dirham is
exchanged for a dirham for a period of time but it is
permissible under the principle of istihsanbecause
of the way people are helped by it. If loans had
remained forbidden they might have suffered great
hardship.

• Another example is looking at the private parts of people in
medical treatment. The general rule is that it is unlawful to
look at private parts, but it is recommended to avert harm.
• Another is sharecropping. The general principle obliges that it
is forbidden since the recompense is unknown, but it is
completely recommended.
• Another is ignoring usury in smalls amount since it is
insignificant and so it is permitted to have a small disparity in
a long delay.
• Another is what we mentioned before of the lack of making
good character a precondition for witnessing when the qadi is
in a place in which witnesses of good character are rare. The
same applies to granting trusteeship to someone without
good character in order to avert hardship as was made clear
under analogy.

1. Istihsan is used for fatwa in questions, not on the basis
of its being a rule, but rather on the basis of its being an
exception to the rule or according to the Maliki definition of
consideration: relaxation of the rule is a temporary principle
as distinct from a universal principle. We saw an example of
this in the fatwa about accepting witnesses who do not have
good character in a land in which no witnesses of good
character can be found and as mentioned above when a loan
is permitted to avert distress and hardship. In these matters
and those like them, istihsan is a relaxation of the general rule
which, if followed in the particular instance in question, would
lead to harm. Istihsan averts that harm.
Two things are evident from examining
the questions in which judgements are
based on istihsan.

2. Istihsan is most often used when the application of strict
analogy would necessarily entail distress. So istihsan in the Maliki
school, as in the Hanafi school, is equivalent to analogy, even
though the methods of the two schools in reaching it are
different. Each of them proceeds according to its legal logic, and
istihsan in the Maliki school aims to avert any distress arising from
following analogy through to its logical conclusion. Asbagh, who
was probably the most prolific exponent of istihsan, said, 'People
who go to extremes in making analogy are in danger of
abandoning the Sunna. Istihsan is the foundation of knowledge.'

• Ash-Shatibi says about istihsan: 'It entails giving
priority to empowered deduction over analogy.
Whoever uses istihsan does not refer to only his
inclination and desire. He refers to what he
knows of the intention of the Lawgiver in those
kinds of theoretical matters, like the questions in
which the people would give a certain
judgement were it not that that matter would
lead to the loss of benefit from a different aspect
or would bring about evil in the same way... In
some case, analogy without restriction would
lead to distress and hardship in some cases, and
so there is an exception for the place of
distress."

• An example of istihsan is when someone dies
leaving a husband, and two siblings by the mother
and two full siblings. The application of analogy to
this question would demand that the husband
inherits a half, the mother a sixth and the brothers
have a third, and there is nothing for the full siblings
although they are the children of the mother. So it is
strange that they do not take anything while the
maternal half-siblings alone receive a third. That is
why 'Umar made them share in the third by the
consideration that they are the sons of the mother.
That is an excellent istihsan on his part. That
establishes the sunna of istihsan to establish justice
which averts distress.

• Like the Malikis, the Hanafis say that istihsan is adopted
when the analogy is offensive or when the analogy will lead
to excess in judgement. When Abu Hanifa used analogy, his
companions argued with him about the criteria, but when he
said he used istihsan, no one added to it, as was stated by
one his pupils, ash-Shaybani.
• That which is clear to us is that istihsan in the Maliki fiqh is
deals with excess in analogy by referring to three matters:
1) the prevailing custom,
2) the predominant benefit, and
3) avoidance of distress and hardship, and
mindfulness of pressing necessities.
• The Hanafi school used to avoid extreme analogy by
observing another cause different from the evident cause in
the analogy. So they consider istihsan when there is a conflict
between two analogies, one with a hidden cause and strong
effect, which is what is called istihsan, and the other with an
apparent cause and weak effect.

The meaning of this is that istihsan is a partial exception
instead of a universal proof which differs in some parts. As
for masalih mursala, it is used when there is no evidence
except it. It is used in two cases:
First Case: When there is no analogy in the subject which can
be applied to a text. In this case, Malik considered this to be a
separate principle We will clarify that later.
Second Case: When there is analogy and carrying that analogy
through would cause hardship or constriction, or loss of benefit:
then there is relaxation in abandoning analogy for this use and
by that harm is avoided. When this is used instead of analogy is
called istihsan.

"He has not placed any constraint on you in the
deen." (22:78)
"Allah desires ease for you; He does not desire difficulty for
you." (2:185)
The Messenger, peace and blessings be upon him, said,
"No harm and no causing injury." A critical examination of
any legal judgement will reveal that the benefit and
averting of harm are both observed in it and are intended
by it.

• Literally; the acquisition of manfa’ah @ the repulsion
of madarrah
• Technically; the preservation of the purposes of
Islamic law in settlement of legal issues
Examples
1.Al – Ghazali has stated that on the basis of masalih
mursalah it is permitted to the ruler to impose taxes
if the coffers are empty & he needs $ for jihad @ for
preserving the security of the Muslim Ummah.

• Al-Ghazali thought that only using benefit
which has no testimony from the Lawgiver in
a text or several indications was judging by
whim. Al-Juwayni also objected to using
benefits without searching for testimony and
said that it is allowing the people to judge
according to their whims and they avoid
what they are averse to and that judgements
would then differ with different individuals.

Muslim fuqaha' state that Muslim
responsibilities fall into two categories;
• The first is acts of worship, which is the system of the
connection between man and his Lord, and they affirm
that the basis in this category is devotion. So the texts
about it are not causal in their whole, or to be more
precise, a person cannot find in acts of worship the
motives and ends for which they exist and on which their
likes could be based. Someone does not impose on
himself an act of worship which the Lawgiver did not
impose whatever the logic. In addition to this prohibition,
it is obligatory for the Muslims to believe that these
responsibilities in worship are for the benefit of man,
even if he cannot legislate the like of them by wisdom,
benefit, or motives. He must stop at what the texts state
and what they indicate and what it connected to them
without adding to them.

• As for the second category of responsibilities, which are
connected to the social transactions of the human race
with one another. This is what the usage of
the fuqaha' terms 'customs'. The basis in that category is
turning to the reasons and motives for which the
judgements were legislated by the agreement of
the fuqaha'. Responsibility in these matters is for the
sake of forming a virtuous Islamic polity based on justice
and virtue.

Ash-Shatibi affirmed that principle in al-
Muwafaqat. It is any attention given to customs
is for one of three reasons;
1. If we investigate, we find that the Lawgiver intended the
welfare of people. In customary judgements you may see
something forbidden in one case in which there is no benefit,
and then permitted when there is benefit, as dirham for dirham
on credit is forbidden in the sale but permitted in the loan.
Selling fresh dates for dry is forbidden when it is simple risk and
usury without benefit, but permitted when there is predominant
benefit in it. The Almighty says, "There is life for you in
retaliation, people of intelligence," (2:179) and He says, "Do not
swallow up one another's property by false means." (2:188)
In hadith, "The judge does not give judgement while he is
angry." The Prophet, may Allah bless him and grant him peace,
said, "No harm and no causing injury." He also said, "The killer
does not inherit," and he forbade the sale with uncertainty. He
also said, "Every intoxicant is unlawful."

2. The Lawgiver was flexible in clarifying causes and
wisdoms in the rules of social relations between people
and customary matters between them. Most of the causes
are logically connected to welfare. We understand from
that that the Lawgiver meant for people to follow the
reasons in them, not to merely stop with the texts – which
is not the case with acts of worship. Worship is only
established by a text.
3. Addressing the causal factors, which are benefits, exists
at times when there are no Messengers, i.e. so that their
welfare can exist and their livelihoods will be in in order.
The Shari'a comes to perfect good character and customs.
This is why the Shari'a confirms a group of judgements
which occurred in the Jahiliyya, like blood money, the
group oath, the commenda and the like of that which were
praised among the the people of the Jahiliyya and
whatever good customs and noble character which
intellects accept: and they are many.

Scholars of usul divide preservation of action into
three grades and base restitution on the basis of their
order:
necessities,
needs and
recommendations.

NECESSITIES
• Necessities are those things which are necessary for
the establishment of the welfare of the deen and this
world, and when they are lacking, the benefits of the
deen are not in order resulting in disorder and loss of life.
The preservation of these necessities is by establishing
them, making their rules firm, and by averting disorder,
actual or probable. This is why foods, drinks, clothes,
behaviour and their organisation is permitted. They are
those things which society must have if it is to function.
This is why such crimes are fought with retaliation, blood
money, ensuring the value of property, the cutting off of
hands, flogging, and other things which are intended to
avert actual and likely disorder. So the basis of
necessities is to establish those five matters

NEEDS
• As for needs, they are connected to what is less than
those five, but their absence entails constriction. Thus
needs are prescribed for expansion and to remove the
constriction which usually results in distress and
hardship. When needs are not cared for, people
experience distress and hardship. This is like permitting
hunting and enjoying good things which a man can
dispense with, albeit with constriction, but when they are
allowed there is expansion

RECOMMENDATIONS
• As for recommendations, their omission does not lead
to constriction, but they are part of good character and
good customs. So then they consist of adopting what is
proper and avoiding what is not proper of dishonourable
things which superior intellects disdain, like manners in
eating and drinking, and being free of prodigality and
niggardliness, and so forth. We do not want to go into
detail about that.

Ibn al-Qayyim divided things into five categories according
to logical hypothesis without looking at its realisation in
existence.
The first category is that which is pure benefit;
the second is what is predominantly benefit;
the third is what is pure harm;
the fourth is what is mostly harm; and
the fifth is that in which harm and utility are equal.

Literally; to know
Technically; it is what the shariah considers to be good, &
not what human reason @ the prevalent practices
consider to be good
***** REFER CHAPTER 2 ; AL’ADAH MUHAKKAMAH

VERBAL (QAWLI) & PRACTICAL
( ‘AMALI) ‘URF

Types of ‘uruf
1.‘uruf amm & ‘uruf khass
 ‘uruf amm =>the common custom , which is
prevalent everywhere among all people in a
matter, regardless of the passage of time
 ‘uruf khass =>particular custom, prevalent in a
particular locality, profession @ trade. This type of
‘uruf is accepted by the people in a particular place &
not in all places

GENERAL (‘AMM) &
PARTICULAR (KHASS) ‘URF

VALID(SAHIH) AND INVALID
(FASID) ‘URF

“Keep to forgiveness, enjoin urf and turn away from the
ignorant” (al-A’raf :199)
Reported by ‘Aishah r.a: “Hind, the daughter of ‘Utbah,
wife of Abu Sufyan, came to Allah’s Messenger and said
“Abu Sufyan is a miserly person. He does not give
adequate maintenance for me and my children, but if I
take from his wealth (some part of it), without his
knowledge. Is there any sin for me?” thereupon, Prophet
(SAW) said, “take from his property what is customary
which may suffice you and your children”.

ROLES OF ‘URUF
• Referring to the above sources,
 earlier and more recent scholars of Islamic law have agreed that
custom is an important source of Islamic law.
 They have not objected to the role of custom in solving the problem
that arise in Islamic law.
 Imam Malik bin Anas for instance has considered the practice of
Madinah people (‘amal ahl al-Madinah) as a source of Islamic law.
 Similarly, Al-Syafii has made many ijtihad on issues that arose when
he was in Iraq, but when he moved to Egypt he changed some of his
earlier opinions because of the different circumstances and customs
in Egypt.
• This is obvious in the past and present literature of fiqh in which
custom has been utilized by the jurists to solve many issues of
fiqh.

3.2 Explain Ijtihad
∗3.2.1 Define Ijtihad and Mujtahid
∗3.2.2 Recognize qualification of
Mujtahid
∗3.2.3 Describe the roles of Mujtahid

• Ijtihad (Arabic) is the term used to designate innovations
in Islam & Sha'aria (Muslim law). The word comes from
"struggle" - the same root as "Jihad." The "t" is added
because it is a reflexive grammatical construction.
• Ijtihad in Sunni Islam is arrived at by independent
interpretation of existing law (the Quran & the Sunnah).
• A person who is qualified by extensive training to devise
Ijtihad is called a Mujtahid.
• Ijtihad was extremely necessary as the new Muslim
religion met very changed conditions of society during its
rapid expansion from the Arabian peninsula, & caliphs
were generally known for their innovation.
• However by the 11th
@ 12th
century, following the Asharite
commentator Al-Ghazali, most Sunni authorities had
declared that the "doors of Ijtihad are closed."

• ijtihad is a technical term of the Islamic law and means the
process of making a legal decision by independent
interpretation of the sources of the law, the Quran and the
Sunna. The opposite of ijtihad is taqleed, imitation. The
person who applies ijtihad, the mujtahid, must be a scholar of
Islamic law.
• The word derives from the Arabic verbal root jahada
"struggle", the same root as that of jihad.
• Literal/Lexical: “Tremendous exertion; great striving;
strenuous endeavour; expending maximum effort”
• Technical: “Applying maximum effort, with due process,
to ascertain the law of Shari’ah by one who is competent
to do so”
• Common usage: “Issuing a sound judgment or
considered opinion”
• Figurative meaning: ‘Ijtihad’ of a Faqih – referred to as
‘Takhrij’

• Ijtihad is the ability to interpret Divine Text by inferring
new rulings, in order to relate it to changing conditions,
and to thereby make the Shari’ah relevant for all times
and eras
• Endeavour of qualified jurist to ascertain Shariah ruling
on a legal issue through utmost intellectual exertion
• At all times must be in harmony with letter & spirit of
Shariáh
• Creates harmony between revelation & reason
• Involves the analytical study of texts with a view to infer
principles, rules & precedents for application to new
situations
• Entails element of speculation & probability (zann) as
outcome could be erroneous, yet rewarding (Hadith)
• Must be consistent and constant throughout its
application

• Mujtahid (Arabic) is a Muslim jurist who is qualified to
interpret the law & thus to generate Ijtihad.
• The qualifications for a mujtahid were set out in the 11th
century by Abul Husayn al-Basri in “al Mu’tamad fi Usul
al-Fiqh” & accepted by later Sunni scholars, including al-
Ghazali
• Though al-Ghazali himself believed that innovation had
ended, as there was nobody qualified to be a Mujtahid
• The closure of the doors of Ijtihad is often blamed for
stagnation of Muslim societies, but this argument can be
turned on its head: the end of innovation may have been
due to the stagnation.
• In European societies that were in ferment, religious
objections never sufficed for long to stop the progress of
science @ changes in government. Religion adapted
itself to society.

• A mujtahid is someone qualified to exercise ijtihad, which
literally means striving and technically means juridical
endeavor and competence to infer expert legal rulings from
foundational proofs within or without a particular school of
law.
A mujtahid mutlaq or "absolute mujtahid" is one that attained
the rank of the Four Imams Abu Hanifa, Malik, al-Shafiì, and
Ahmad in knowledge of Arabic, qualification to apply legal
reasoning, draw analogies, and infer rulings from the evidence
independently of the methodology and findings of the Sunni
Schools, through his own linguistic and juridical perspicuity
and extensive knowledge of the texts.
Examples: several of the Companions and Tabiìn, al-Awzaì,
al-Tabari, Dawud al-Zahiri, and others. An additional
qualification sine qua non is agreed-upon, superlative taqwa.
There is no mujtahid mutlaq today nor even a claimant to that
title.

• The term ijtihad as used in the writings of scholars
of different Islamic sects conveys 2 different
meanings, each of which gives rise to different
viewpoints regarding the sources of Shar'i ahkam.
• In the 1st conception ijtihad means derivation of
Shar`i hukm through personal judgement & ray for
an issue for which the mujtahid does not find any
express text in the Quran @ the Sunnah.
• It means that in the same manner as a mujtahid
relies on sources like the Quran, the Sunnah, `aql &
ijma` for deriving ahkam, he can also rely on ray &
subjective opinion by taking recourse to instruments
of presumption (like qiyas, istihsan, masalih
mursalah, istislah, madhhab al Sahabi, fath‑
al dhara'i`, sadd al dhara'i`,‑ ‑ etc.) for issues on which
there is no express text in the Quran & the Sunnah.

• In the 2nd
conception ijtihad means deduction of the
fari ahkam from the reliable sources (the Quran, the
Sunnah, ijma` & `aql).
• According to this conception, the activity of the
mujtahid involves deduction of the laws of the
Shari'ah for emergent issues & new phenomena of
life by employing general principles & rules.
• Thereby the mujtahid refers new secondary issues
to the general principles & applies the general laws
to their particular instances in external reality, thus
obtaining the ahkam governing them.
• According to this conception, ijtihad is not counted
as an independent source of law parallel to the
Quran & the Sunnah, but merely as a means for
deriving & determining the ahkam from the sources.

Qualifications require proficiency in Sha'aria law
& its interpretation. Specifically:
• Fluency in the relatively obscure classical literary
Arabic of the Quran and the Sunnah.
• Proficiency in the laws (ayat al Ahkam) of the
Qu'ran
• An adequate knowledge of the Sunnah,
• Understanding of the Hadiths and of the relative
reliability of the narrators and the priority between
conflicting rulings, some of which were abrogated.
• An ability to verify the consensus of the
companions of the Prophet and leading
authorities, as well as ability to identify unresolved
issues.

• A thorough knowledge of the methodology and
logical system of reasoning by analogy (qiyas)
making to possible to apply revealed law to an
unprecedented case.
• Understanding of the revealed purposes of
Sha'aria, including "considerations of public
interest" - protection of life, religion, intellect,
lineage and property.
• Understand the general maxims for the
interpretation of Sha'aria: "removal of hardship",
that "certainty must prevail over doubt", and the
achievement of a balance between unnecessary
rigidity and overly liberal interpretation.
• An upright life and a judgment that can be trusted.

QUALIFICATIONS FOR MUJTAHID:
• Arabic language – complete mastery
• Quran – detailed knowledge
• Sunnah – in-depth learning
• Qiyas capability – analytical, razor-sharp mind
• Maqasid-Shariáh knowledge
• Piety, righteousness & compliance
• Inherent aptitude for Ijtihad – God-given ability
• Popular acclaim & wide public acceptance

• Mujtahid must be a Muslim and a person of sound mind and
intellectual competence.
Requirements of a mujtahid :
*Knowledge of Arabic such than he can understand the Qur'an
and Hadith
correctly.
• *Knowledge of the Qur'an which includes Makki/Madani;
Occasions of Revelation; Incidences of Abrogation; LEGAL TEXTS
(aayaatul ahkaam). (In short all the requisites of Tafsir)
• *Knowledge of the Sunnah specifically the legal texts (ahaadeethal
ahkaam)
• He most know where to find the Hadiths and be able to distinguish
the reliable narrations from the weak.
*Knowledge of the substance of the Furu` works and the points on
which there is Ijma`.
• *Knowledge of Qiyas (Analogical Deduction)
*Knowledge of the Maqasid (objectives) of the Shari`ah
• *Knowledge of the General Maxims of Fiqh. eg. Certainty prevails
over Doubt.

• The Mujtahid is he who possesses, together with complete soundness of mind and of
Religion, three necessary traits:
• 1. Knowledge of the Arabic language and the ways in which its signifies meanings. This
knowledge does not come except to one who has frequented its various disciplines and read
much of the works of its masters of eloquence until he knows how to differentiate between
the specific and the general, the literal and the figurative, the explicit and the ambiguous,
and other aspects upon knowing which depends his ability to infer rulings.
He does not have to reach the mastery of language of a Khalil or a Sibawayh or al-Asma`i and
others of the Imams of Arabic. It suffices that he attains the rank necessary to understand
texts in the right way.
• 2. Knowledge of Qur'an and Sunna and whatever is in them of rulings, those that were
abrogated and those that were not, together with the linking up of the universal with its
particulars, the absolute with its restricted sense, and the general with the specific. He does
not, in this, have to have memorized all that is related.
It suffices that he has to be able to gather up all that is connected with the topic he is
investigating and to know what the experts of hadith have said concerning sound or weak
gradings as well as what they said concerning the narrators with regard to discreditation and
commendation.
• 3. Knowledge of the objectives of the Law and of the living contexts of people as well as the
customs they share and whatever harms or benefits them, and the ability to know the
minute defects of legal rulings and to compare and contrast their similarities so as to better
understand facts and infer the rulings that most precisely correspond to the objectives of the
Lawgiver and implement the welfare of those under consideration.

DUTIES/TASKS OF A MUJTAHID:
• Discover law through literal interpretation (‘reading in’) of
texts – dalaalat
• Extend law to new cases similar to existing cases in texts
through Qiyas based on Illah
• Extend law to new cases not found in texts at all through
Istihsan/Masalih based on Hikma
• All of this is practiced as a seamless activity
• Deep knowledge of Nasikh-Mansookh (Discipline of
Abrogation)
• Ability to exercise Tarjeeh (preference) and Jam’
(reconciliation of texts)
• Competency to comprehend aspects of Bayan in Divine texts

ROLE & DUTIES OF A FAQIH/MUFTI:
• Implement & extend Principles of law (Usool) in new
situations
• Implement & extend Maxims of law (Qawaid-Kulliah) in
contemporary situations
• Develop 3rd
mode of Ijtihad – value-oriented Fiqh –
theory of values & interests – Maqasid-as-Shariáh
• All of the above must be consistent within existing
schools

CONTEMPORARY APPLICATION OF IJTIHAD:
• Urgent need for ‘Ijtihad’ in current age to solve political,
economical, medical, social, educational problems
• Due to complexities and specialisation, need for
collective ‘Ijtihad’ through association of jurists
• Establishment of Fiqh Councils to exercise ‘Ijtihad’
• Endeavours of Fiqh Councils & Jurists

CONTEMPORARY IJTIHADI RULINGS:
• Islamic banking & finance –
• Bio-medical issues –
• Ibadah-based problems –
• Political issues –

‫خير‬ ‫ا‬ ‫جزاكم‬
‫الجزاء‬
THANK YOU

PS201-Chapter three

Empfohlen

Empfohlen

Weitere ähnliche Inhalte

Was ist angesagt?

Was ist angesagt? (20)

Andere mochten auch

Andere mochten auch (20)

Ähnlich wie PS201-Chapter three

Ähnlich wie PS201-Chapter three (20)

Mehr von MOHD GHADAFI SHARI

Mehr von MOHD GHADAFI SHARI (8)

Kürzlich hochgeladen

Kürzlich hochgeladen (20)

PS201-Chapter three