Sources of Sharia

Various sources of Sharia are used by

Islamic jurisprudence to elaborate the
body of Islamic law.[1] The scriptural
sources of traditional Sunni jurisprudence
are the Qur'an, believed by Muslims to be
the direct and unaltered word of God, and
the Sunnah, consisting of words and
actions attributed to the Islamic prophet
Muhammad in the hadith literature. Shi'ite
jurisprudence extends the notion of
Sunnah to include traditions of the
Imams.[1]

Since legally relevant material found in

Islamic scriptures did not directly address
all the questions pertaining to Sharia that
arose in Muslim communities, Islamic
jurists developed additional methods for
deriving legal rulings.[1] According to Sunni
schools of law, secondary sources of
Islamic law are consensus, the exact
nature of which bears no consensus itself;
analogical reason; seeking the public
interest; juristic discretion; the rulings of
the first generation of Muslims; and local
customs.[2] 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.[1][3] Among
Shia, Usuli school of Ja'fari jurisprudence
uses four sources, which are Qur'an,
Sunnah, consensus and the intellect. They
use consensus under special conditions
and rely on the intellect to find general
principles based on the Qur'an and Sunnah,
and use the principles of jurisprudence as
a methodology to interpret the Qur'an and
Sunnah in different circumstances. Akhbari
Ja'faris rely more on scriptural sources
and reject ijtihad.[1][4] 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.[5]

Primary sources

Qur’an …

A copy of the Qur'an, one of the primary sources of

Sharia
Sharia.

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.[6]

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.[1][6]

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 Imams and Fatimah,
Muhammad's daughter, who are believed
to be infallible.[1][7]

Justification for using the Sunnah as a

source of law can be found in the Qur'an.
The Qur'an commands Muslims to follow
Muhammad.[8] During his lifetime,
Muhammad made it clear that his
traditions (along with the Qur'an) should be
followed after his death.[9] 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.[7] 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.[10]
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.[7] 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.[11] Examples of biographical
dictionaries include Ibn Hajar al-Asqalani's
"Tahdhīb al-Tahdhīb" or al-Dhahabi's
"Tadhkirat al-huffāz."[12]

Using this criterion, Hadith are classified

into three categories:[7]
 1. Undubitable (mutawatir), which are
very widely known, and backed up by
numerous references.
2. Widespread (mashhur), which are
widely known, but backed up with few
original references.
3. Isolated or Single (wahid), which are
backed up by too few and often
discontinuous references.

in a Shariah court a qadi (judge ) hears a

case, including witnesses and evidence .
then the qadi makes a ruling . sometimes
the qadi consults a mufti or scholar of law,
for an opinion.
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.[13]

Consensus …

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.[14][15] Muhammad himself said:

"My followers will never agree upon an

error or what is wrong",
"God's hand is with the entire
community".[14][16]

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.[17] This is so because ijma'
represents the unanimous agreement of
Muslims on a regulation or law at any
given time.[18]
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.[19] Ijma' was always used
to refer to agreement reached in the past,
either remote or near.[17] Amongst the
Sunni jurists there is diversity on who is
eligible to participate in ijma' , as shown in
the following table:
 School of Formation of
Rationale
jurisprudence ijma'
through
public the jurists are
Hanafi agreement of experts on
Islamic legal matters
jurists
through
agreement of the people
the entire cannot agree
Shafi'i
community on anything
and public at erroneous
large
Maliki through Islamic
agreement tradition says
amongst the "Medina expels
 residents of bad people like
Medina, the the furnace
first Islamic expels
capital impurities from
iron"
through they were the
agreement most
and practice knowledgeable
Hanbali
of on religious
Muhammad's matters and
Companions rightly guided
Usuli only the consensus is
consensus of not genuinely
the ulama of binding in its
the same own right,
period as the rather it is
 Prophet or binding in as
Shia Imams much as it is a
is binding. means of
discovering the
Sunnah.
Source:[1][19]

In modern Muslim usage it is no longer

associated with traditional authority and
appears as democratic institution and an
instrument of reform.[17]

Analogical reason …

Qiyas or analogical reason is the fourth

source of Sharia for the majority of Sunni
jurisprudence. It aims to draw analogies to
a previously accepted decision. Shiites do
not accept analogy, but replace it with
reason (aql); among Sunnis, the Hanbalites
have traditionally been reluctant to accept
analogy while the Zahirites don't accept it
at all. Analogical reason in Islam 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. Legally sound analogy must
not be based on arbitrary judgment, but
rather be firmly rooted in the primary
sources.[20]
Supporters of the practice 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 supporters of the practice,
Muhammad said: "Where there is no
revealed injunction, I will judge amongst
you according to reason."[21] Further,
supporters claim that he extended the
right to reason to others. Finally,
supporters of the practice claim that it is
sanctioned by the ijma, or consensus,
amongst Muhammad's companions.[20]
Islamic studies scholar Bernard G. Weiss
has pointed out that while analogical
reason was accepted as a fourth source
of law by later generations, its validity was
not a foregone conclusion among earlier
Muslim jurists.[22] Thus the issue of
analogical reason and its validity was a
controversial one early on, though the
practice eventually gained acceptance of
the majority of Sunni jurists.

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 Abbasids,
who succeeded the Umayyads defined it
more strictly, in an attempt to apply it more
consistently.[20]

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.[20]

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 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.[20]

The Shafi'i school of

thought accepts qiyas The
as a valid source. knowledge
Imam Shafi'i, however, of ours is
considered it a weak
an opinion,
source, and tried to
it is the best
limit the cases where we have
jurists would need to been able to
resort to qiyas. He achieve. He
criticized and rejected
who is able
analogical deductions
to arrive at
that were not firmly
different
rooted in the Qur'an
and sunnah. According conclusions
to Shafi'i, if analogical is entitled
deductions were not to his own
strictly rooted in opinion as
primary sources, they we are
would have adverse entitled to
effects. One such
our own.
consequence could be
variety of different
rulings in the same — Abu
subject. Such a Hanifa[20]
situation, he argued,
would undermine the predictability and
uniformity of a sound legal system. [23]

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".[23]
Juristic preference …

Abu Hanifa developed a new source

known as juristic preference.[24] Juristic
preference is defined as:

A means to seek ease and convenience,

To adopt tolerance and moderation,
To over-rule analogical reason, if
necessary.[25]

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.[23] The doctrine was justified
directly by the Qur'anic verse stating: "Allah
desires you ease and good, not
hardship".[25] 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,[26] and its opponents
claimed that it often departs from the
primary sources.[23]

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.[24] 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
reason, however, dictates 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 analogy means the public may not use
the well, and therefore causes hardship.
Thus the principle of justistic preference is
applied, and the public may use the well
for ritual purification.[25]
Public interest …

Malik developed a tertiary source called al-

maslahah al-mursalah, which means that
which is in the best interests of the general
public. 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 jurist uses his
wisdom to pursue public interest. This
source is rejected by the Shafi'ites,
Hanbalites and Zahirites from Sunni
jurisprudence.[23]

Inference …
Shafi'i accepted cases in which he had to
be more flexible with the application of
Qisas. Similar to Abu Hanifa and Malik, he
developed a tertiary source of legislation.
The Shafi'i school adopted istidlal or
inference, a process of seeking guidance
from the source. Inference allowed the
jurists to avoid strict analogy in a case
where no clear precedent could be found.
In this case, public interest was
distinguished as a basis for legislation.[23]

Muslim scholars divided inference into

three types. The first is the expression of
the connection existing between one
proposition and another without any
specific effective cause. Next, inference
could mean presumption that a state of
things, which is not proved to have ceased,
still continues. The final type of inference
is the authority as to the revealed laws
previous to Islam.[27]

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.[28]

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.[28] In Sunni Islam, thus, ijtihad was
replaced by taqlid or the acceptance of
doctrines developed previously.[29] 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
̲ (Averroes d. 595/1198).[29]
was Ibn Rus̲hd

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.[30]

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
mujaddid,
̲ 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.[29]
Local custom …

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,[31] Sharia
recognizes customs that prevailed at the
time of Muhammad but were not
abrogated by the Qur'an or the tradition
(called "Divine silence"). Practices later
innovated are also justified, since Islamic
tradition says what the people, in general,
consider good is also considered as such
by God. According to some sources, urf
holds as much authority as ijma
(consensus), and more than qiyas
(analogical deduction). Urf is the Islamic
equivalent of "common law".[32]

Local custom 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
̲ s̲ ī (d. 483/1090)
source. Later, al-Sarakh
opposed it, holding that custom cannot
prevail over a written text.[31]

According to Sunni jurisprudence, in the

application of local custom, 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 analogical reason, custom is given
preference. Jurists also tend to, with
caution, give precedence to custom over
doctoral opinions of highly esteemed
scholars.[32] Shi'ite scholars do not
consider custom as a source of
jurisprudence, nor do the Hanbalite or
Zahirite schools of Sunni jurisprudence.

See also
Fiqh
Ijazah
Madrasah
Notes
1. Mutahhari, Morteza. "Jurisprudence
and its Principles" . Tahrike Tarsile
Qur'an. Retrieved 26 July 2008.
2. "Shari`ah and Fiqh" . USC-MSA
Compendium of Muslim Texts.
University of Southern California.
Archived from the original on 18
September 2008. Retrieved 26 July
2008.
3. Motahhari, Morteza. "The Role of
Ijtihad in Legislation" . Al-Tawhid.
Retrieved 26 July 2008.
4. Momen (1985), p.185–187 and 223–
234
 5. Momen (1985), p.188
. Nomani and Rahnema (1994), p. 3–4
7. Nomani and Rahnema (1994), p. 4–7
. Quran 59:7
9. Qadri (1986), p. 191
10. "Hadith", Encyclopedia of Islam.
11. Berg (2000) p. 8
12. See:
Robinson (2003) pp. 69–70;
Lucas (2004) p. 15
13. Makdisi, John (1985). "Legal Logic and
Equity in Islamic Law", The American
Journal of Comparative Law, 33 (1):
63-92
14. Mahmasani, S. Falsafe-e
Ghanoongozari dar Eslam. Tehran:
Amir Kabir. pg. 143
15. Verses Quran 2:143 , Quran 3:103 ,
Quran 3:110 , Quran 4:59 ,
Quran 4:115 and Quran 9:119 are
presented by Mahmasani.
1 . Muslehuddin, M. Philosophy of Islamic
Law and the Orientalists. New Delhi:
Taj printers, 1986. pg.146
17. Encyclopædia Britannica, Ijma.
1 . "Id̲jmāʿ",
̲ Encyclopaedia of Islam
19. Nomani and Rahnema (1994), p. 7–9
20. Nomani and Rahnema (1994), p. 9–12
21. Mahmasani, S. Falsafe-e
Ghanoongozari dar Eslam. Tehran:
Amir Kabir. pg. 140
22. Bernard G. Weiss, The Search for
God's Law: Islamic Jurisprudence in
the Writings of Sayf al-Din al-Amidi, pg.
633. Salt Lake City: University of Utah
Press, 1992.
23. Nomani and Rahnema (1994), p. 13–
15
24. Encyclopædia Britannica, Istihsan
25. Hasan (2004), p.157–160
2 . Hallaq, "Considerations on the
Function and Character of Sunnī Legal
Theory".
27. Hodkinson, Keith. Muslim Family Law:
A Sourcebook. India: Routledge, 1984.
2 . Nomani and Rahnema (1994), p.15–
16
29. Ijtihad, Encyclopaedia of Islam
30. ʻAlwānī (1973), p. 9
31. "Urf", Encyclopaedia of Islam
32. Hasan (2004), p. 169–71

References
ʻAlwānī, Ṭāhā Jābir Fayyāḍ. Uṣūl Al Fiqh
Al Islāmī. IIT. Based on the author's PhD
thesis at Al-Azhar University.
Hasan, Abrar (2004). Principles of
modern Islamic jurisprudence. Karachi:
Pakistan Academy of Jurists.
Momen, Moojan (1985). An Introduction
to Shi`i Islam: The History and Doctrines
of Twelver Shi'ism. Yale University Press.
ISBN 0-300-03531-4.
Motahhari, Morteza (1983).
Jurisprudence and Its Principles,
translator:Salman Tawhidi . Moslem
Student Association (Persian Speaking
Group). ISBN 0-940368-28-5.
Nomani, Farhad; Rahnema, Ali. (1994).
Islamic Economic Systems. New Jersey:
Zed books limited. ISBN 1-85649-058-0.
Qadri, A. A (1986). Islamic jurisprudence
in the Modern World. New Delhi: Taj
 Company.

Encyclopedias …

The New Encyclopædia Britannica (Rev

ed.). Encyclopædia Britannica,
Incorporated. 2005. ISBN 978-1-59339-
236-9. Missing or empty |title= (help)
Libson, G.; Stewart, F.H. "ʿUrf."
Encyclopaedia of Islam. Edited by: P.
Bearman, Th. Bianquis, C.E. Bosworth, E.
van Donzel and W.P. Heinrichs. Brill,
2008. Brill Online. 10 April 2008

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. Princeton: Princeton University
Press, 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 Motahhari
The Principle of Ijtihad in Islam by
Morteza Motahhari
 The Role of Ijtihad in Legislation by
Morteza Motahhari

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