Sources of Islamic Law

There are two types of sources of every legal system, primary source and secondary source. The classification of the sources of Islamic into primary and secondary is nothing more than about a collection, and combined effect of certain attributes that are identified by different jurists for different sources.

Different between primary and secondary sources of Islamic Law.

Primary Sources:

Primary sources are those sources that are unanimously agreed by four Sunni schools. The primary sources are Quran , Sunna, Ijma, and Qiyas. The other sources are accepted by some of the Sunni school and not by other. Istihsan is accepted by the Hanafi’ and Maliki schools, but not by the others,

Secondary Sources:

Secondary sources are those that are not unanimously accepted by the Sunni schools. When the range of schools is windended, analogy is excluded from the primary sources and so ijma. Sia,ah school of thoughts not accept these two sources.

Primary Sources:

Holy Quran

The word quran is derived from the Arabic word “Qurra” which mean to read. It was reveald to the profit Mohammad ﷺ through angel Gabriel for the benefit of mankind. The word Al-Quran and Al-Kitab are used in same meaning.

• The definition of Holy quran according to the Al- Bazdawi.

القرآن ھو کتاب المنزل علی رسول اللہ محمدصلی اللہ علیہ وسلم المکتوب فی المصاحف ، المنقول الینا عنہ نقلا متواترا بلاشبۃ

“The Quran is the speech of Allah revealed to Muhammad (Peace be upon him).  As written in the musahif and transmitted to us from him through an authentic continuous narration without doubt.”

• Ahkam in the Quran: There are approximately six hundered verses in the Quran that indicate the ahkam of Islamic law. Approximately five hundred of these pertain to the “ibadat” and the remaining to crimes, personal law, and other mu’amlat.
• To be specific, about 70 verses pertain to family law, 80 to trade and finance, 13 to oaths, 30 to crimes and sentencing, 10 to constitutional and administrative matters, 25 to international law and prisoners of war, while the rest pertain to ‘ibadat’.

The Sunnah/Ahadis

The word Sunnah has a literal meaning and several technical meanings. In literal meaning the word Sunnah stand for the “well-Known path”or “well-trodden path” which is followed again and again. Sunnah or Ahadis mean traditions of the holy prophetﷺ which supplement the Quran.

• It is the model behaiours of the Holy prophetﷺ. The narrations of “what” the prophet said, did, or tacitly allowed” are called hadis.
• It is define as “what was transmitted from messenger of Allah, of his words, acts, and approvals.” It is in this sense the jurists use the term Sunnah, that is as the Sunnah of the prophet(peace be upon him) and a source of Islamic Law.

Kinds of Sunnah

The Sunnah is classified in two ways:

First Kind

The kinds of the Sunnah when we look at the channels through which the ahkam are established. This is called classification of suunah according to the nature.

This type of Sunnah is of three types:

Al-Sunnah al- Qawliyah:

it is defined as the sayings of the Prophet (p.b.u.h) through which he intended the laying down of the law or the explanation of the ahkam.Some exapmles are:

• Al-Kharaj bi al-daman (الخراج بالضمان) Entitle- ment to revenue depends on a corresponding liability for loss.
• Innama al-a’mal bi al-niyyat ((انماالاعمال باالنیات Entitle-The nature of acts dependent uponthe underlying intentions.

It is to be noted that not every saying of the holy prophet (p.b.u.h) is a source of law. To become a source of law, the purpose of the saying should be the laying down of the law or its elaboration.

Al-Sunnah al- Fi’liah:

It is define as the acts of the holy prophet (p.b.u.h) having a legal content, like his prayer, fast, hajj. These acts or the method of their performance that he adopted are to be followed in the same wayas his saying.

The acts that do not have a legal content do not become a source of law. There are various ways to understand this thing.

• Ordinary physically acts performed by every human being, like eating, drinking, walking and sitting.
• The acts that are specific to the prophet (p.b.u.h) and rest of the ummah is not to follow him in such acts.

Example: As in the case of the number of marriages.

• Acts that are intended to be explainations of the undetailed rules in the text.
• The act that establish new law. This category is what the jurist interested in.

Sunnah Taqririyah:

It is defined as the commission of certain acts, by word or deed, by some compainions and the maintenance of silence by the holy prophet (p.b.u.h) without expressing disapproval.

Second kind

The second kind of Sunnah with respect to the channels through which it is transmitted/ narrates to us. This may also called the classification of the Sunnah according to its written recod. Ahadith are divided, with respect to narration, into two types.

Hadith Muttasil:

The hadith whose chain of narration is complete, these are the ones in which the narrators are mentioned from the beginning of the sanad up to the holy prophet. And there is no narrator is missing. The majority of jurists divided the muttasil ahadith into three types:

Hadith Mutawatir:

The Hadith reported by verifiable number of narrators and  through multiple chains of making it authenticity virtually certain.

Example: انماالاعمال بالنیات، وانما لکل امریء مانوی۔

Hadith Mashhur:

A hadith three or more narrators, but not considered mutawatir, which even wider transmission. The mashhur hadith is one the number of whose reporters do not reach the level of tawatur in the first generation.

Hadith Ahad:

The Hadith Ahad or Khabar wahid is reported by one or two perons for the beginning of its chain upto its end when all traditions were recorded.

Hadith that is not Muttasil:

A Hadith that is not continuous in one that he names of one or more narrators missing from the chain of narrations. This is called mursal report. It is like a reliable narrator from a last generation saying: “The massanger of Allah said that” ……as for the fraditionists.

Ijmah (اجماع) Consensus of legal Opinion

Ijma is defined as :

اتفاق المجتہدین من امۃ محمد ﷺ بعد وفاتہ فی عصر من العصور علی حکم شرعی۔

The consensus of mujtahids (independent jurists) forms the ummah of Muhammad (p.b.u.h), after his death, in a determined period upon a rule of Islamic law.

Some conditions for the Validity of ijma

• The agreement or consensus must take place among mujtahids that is those who have attained the status of ijtihad.
• The agreement must be unanimous, that is, among all the mujtahids.
• All jurists participating in ijma’ must be from the ummah of Muhammad (p.b.u.h)
• The agrrement or consensus must have taken place after the death of the holy prophet (p.b.u.h.)
• The agreement must be among the mujtahids of a single determined period.
• The agreement must be upon a rule of law , the hukm shari.
• That the mjtahids should have relied upon a sanad for deriving their opinion.
• That the ijma should have been transmitted to the later jurists by way of tawatur.

Types of Ijma

There are two types of ijma, briefly describe bleow.

Explicit ijma or ijma’qawli:

Ijma is one in which the legal opinions of all the jurists of the one period converge in relaton to legal issue, and each one of them states his opinion explicitly.

Tacit ijma or ijma ‘sukuti:

This form of ijma takes place when some mujtahid, one or more, issue a verdict on a legal issue and the rest of the mujahids come to know of it during the same period, but they keep silent.

Qiyas /Analogy (قیاس)

The literal meaning of qiyas is “measuring” or “estimating” one thing in term of another.

In technical sense

“The assignment of the hukm of an existing case found in the text of Quran, Sunnah, or ijma to a new case whose hukm is not found in these sources on the basis of a common underlying attribute called illah of the hukm

Another definitions is

“The quality of a case, whose hukm is not mentioned explicitly in the texts, with a case whose hukm is mentioned, on the basis of the equlity between the underlying causes found in the two cases.”

Element of Qiyas.

Following are the element of qiyas.

• The case (set of facts) mentioned in the text with its hukm.
• The hukm of the set of faces mentioned in the text.
• The ‘illah or the underlying cause that has led to the hukm.
• The new case or the set of facts for which the hukm has not been explicitly mentioned and which needs a hukm.

Example: The prohibition of khamr is laid down in holy quran. The illah is disaster ( Nasha) so if there is found this illah so the hukm of khmar is applied on it.

 

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An Introduction to Islamic Jurisprudence / Fiqh, according to 05 Muslim Jurists