Prof. Dr.

Taslima Monsoor
 Sources of Islamic Law:

The study of any legal system requires considering the sources. The science
of Islamic Law (Fiqh) is the knowledge of one’s rights and obligations derived
from the Quran, Sunna, Ijmaa and Qyas.

There is a Hadith of the prophet, which is usually invoked in this connection,

the prophet sent Muadh, one of his companions as governor of Yemen and
also as distributor of Justice. No trained lawyer existed at that time and the
prophet asked:

Prophet: ‘On what shalt thou base thy decision?’

Muadh: ‘On the Quran – The scripture of Allah.’

Prophet: ‘If the Quran does not give guidance to the purpose?’

Muadh: ‘Then upon the tradition of the prophet.’

Prophet: ‘But if that also fails?’

Muadh: ‘Then I shall strive to interpret with my reason.’

And then the Prophet said:-

“Praise be to Allah who has favored the messenger of his messenger with
what his messenger is willing to approve.”
A. Primary Sources:

1. The Quran:
The Quran is the fundamental base of Islam. Its importance is religious and
spiritual, no less than legal, as it is in Muslim belief, the word of Allah.

The Quran is al-farqan i.e. one showing truth from falsehood and right from
wrong. The holy book, divine in origin is believed to have been revealed to
the prophet Mohammad (pbh) by the holy spirit (Gabriel) over 22 years. It
contains about 6666 sentences (Ayats) and 114 verses- Suras (parts) in 30
Paras or chapters. But not more than 200 sentences (Ayats) deal with legal
principles and there are about 80 sentences (Ayats) more or less which deal
with the law of personal status.

The verses of the Quran although only a few of them deal specifically with
legal questions, are held to be of paramount authority. As the Holy Quran is
sacred and divine no court can change it.

The prophet was ordained to preach the Quran and thus established Islam.
Anything contrary to Quran is not Islamic law. The Quran was officially
completed after the prophet’s death at the time of the first Caliph Abu Baker.
2. Sunna:
The second source of Islamic Law is the Sunna which means the practices
of the prophet, his model behaviour. The Sunna comprises of:

a. Sunnat-ul-Qual:- All words, counsels of the prophet.

b. Sunnat-ul-Fail:- All actions, works and daily practices of the

prophet.

c. Sunnat-ul-Taqrir:- His silence implying or tacit approval on his

part of any individual act committed by his disciple.

The word Sunna should be distinguished from the term Hadith otherwise
confusion of thought will arise. The misconception is Hadith is the story of a
particular occurrence and Sunna is the rule of law deduced from it. Actually
Hadith is the written form of Sunna which was made 150 years after Sunna.

Sunna glorified the prophet and his spiritual deeds. The Quran and Sunna
are often called “Nass” (Binding Ordinance) and represent direct and indirect
revelation. The principles which were stated in the Quran found their
application in the hands of the prophet. The Quran and Sunna are also
called Usl Al Usl or roots of the base. Thus Sunna is also divine in origin as
it contains the indirect words of Allah.
The prophet Mohammad once said, “I am leaving behind two weighty things
i.e. the Quran and my personal experience. If you hold fast to these you will
never go astray.”

The relative authority of Quran and Sunna has been ascertained by the
prophet himself. He said, “My words (meaning Sunna) are not contrary to
the words of God (the Quran), but the words of God can contradict mine.”
Sunnah was compiled into Hadith. Among the compilations six are
recognised as reliable:

Compilations of
Compiled by Time
Hadith
a. Shahi Bukhari Md. Bin Ismail Al Bukhari 194-256 Hijri

b. Shahi Muslim Muslim Bin Al Hejaj 204-291 Hijri

c. Jameya Tirmiji Abu Isha Md. Tirmiji 209- 279 Hijri

d. Sunan-e-Abu Daud: Abu Daud Al Sijistani 204-275 Hijri

e. Sunan Nasaee Abdur Rahman Al-Nasaee 215-305 Hijri

f. Sunan Ibne Maja Abu Abdullah Md. Ibne 209-275 Hijri

Maja

More over Imam Malik’s compilation known as ‘Al-Muwatta’ and other

schools complications are also regarded as authenticated.
3. Ijmaa:
The third source of Islamic Law after exhausting Quran and Sunna consists
of the consensus of opinion of the companions of the prophet, specially the
four Caliphs- Abu Baker, Omar, Osman and Ali on theological, civil and
criminal matters.

Ijmaa is of various kinds:

i. The consensus of opinion of the companions of the Prophet (as

suggested by Imam Ahmad Ibn Hanbal)
ii. The consensus of opinion of the companions of the jurists
iii. The consensus of opinion of the citizens of Medina (as suggested by
Imam Malik)

According to Sir Abdur Rahim ‘Ijmaa’ is “The agreement of the jurists among
the followers of Mohammad in a particular age on a particular question”.
According to Saksena ‘Ijmaa’ of one age may be reversed or modified by the
‘Ijmaa’ of the same or subsequent age. But it can not be questioned or
challenged by any individual jurists. The validity of ‘Ijmaa’ is based upon a
hadith of the Prophet which says that Allah will not allow his people to agree
on an error. e.g. Hefzur Rahman case.
4. Qiyas:
The fourth and last source of law is Qiyas or analogical deduction. Literally
means measurement or judging, by comparing a thing or analogy. Qiyas or
analogical deduction consists in applying old established principles to new
circumstances. But “Ray” means individual reasoning or opinion. Qiyas or
analogical deduction is the reasoning by analogy from the Quran, Sunna
and Ijmaa, Qiyas is thus defined as an extension of law from the original text
by means of a common cause. It is a process of deduction which is not to
change the law of the text. It is applicable in cases not covered by the
language of the text, but may fall under the reason of the text. Therefore in
importance Qiyas occupies the place next to Quran, Sunna and Ijmaa. e.g.
Strong drink is explicitly prohibited for its intoxicating effect, say wine is not
explicitly prohibited but as the cause for the prohibition is the effect of
intoxication to which both give rise, wine is also prohibited. But grape juice
because it does not effect intoxication is not prohibited. So, we have dealt
upon the four basic primary sources of Islamic law namely the Quran,
Sunna, Ijmaa and Qiyas.

B. Material Sources:

There are also material sources of custom, legislation and decisions of

Supreme Court which are infiltrated in Islamic law.
C. Equitable Sources:

Apart from these four Primary Sources and Material Sources and Equitable
Sources of law were contemplated by different jurists. These sources are not
generally recognised and appear in the works of jurists propounding term.

1. Istihsan or Juristic Preference:

Imam Abu Hanifa is the architect of these source. Istihsan means that a rule
of law analogically deduced (Qiyas) is not preferred for the exigencies of a
particular case. There is no direct abrogation of the law but a slight
modification to meet the demands of the society.

e.g. Under Muslim law the subject matter must be present at the time of
contract of sale or goods supplied in future is invalid. But on the ground of
necessity and universal practice it is valid.

According to Tyabji: This term was used by the great jurist (Abu Hanifa) to
express the liberty that he assumed, of laying down such a rule of law, as, in
the opinion of the exponent, the special circumstances required, rather than
the rule that analogy indicated.

2. Muslahat or Public Welfare:

Imam Malik recognised this as a deduction where the basis is for public
welfare. Analogy of law can be disregarded only if it is harmful to the public.
It considers a thing to be good.
 3. Istadlal:

Imam Malik is the architect of this source. Istadlal is described as striving

after the basis for a rule.

4. Istishab /Deduction by Presumption:

Imam Ash-Shafi and Ahmad Ibn Hanbal were the founder of this source. Its
means the things whose existence or non-existence is proven in the past
should be presumed to have remained as such.

Conclusion:

These equitable sources play an insignificant role in shaping Islamic law.

 Five periods of Muslim Law and
Reasons for their Development

The history of Muslim law and jurisprudence are divisible into five distinct
periods:

1. The first period commenced (A.H 1-10) with the Hijrat or retirement
of the prophet to Medina from Mecca (A.D. 622 and ended with his
death on A.D 632). This period is the legislative period of Islam when
laws were enacted by the divine legislator (Allah) and promulgated
in the words of the Quran or by the precepts of Muhammad – the
prophet of Islam.

2. The second period extends from the date of the prophet’s death
(A.H.10-40/AD 632-662) to the time of the companions of the
prophet (Ashab) and their successors (Tabiun). Abu Baker has
elected the first Caliph, then Umar, Osman and Ali (Sunnis for
elections Shias for successor) then Umaiyad’s and Abbasides. It
was a period mainly of collection of laws.

3. The third period was marked by a theoretical and scientific study of

the law and religion and it was then that the schools of Muslim
jurisprudence were established (from A.H. 40 to third century of the
Hijra/A.D. 662-962). Also, collection of traditions took place in the
third period and collections of Bukhari and Muslim came to be
recognized as authoritative.
 4. The fourth period (3rd century of Hijra till 1929 A.D the abolition of
Caliphate in Turkey) in the history of Muslim law were Ijtihad or
power of independent interpretation has been restricted and taqlid
or following or imitation within the limits of each school was
developed.

• Ijtihad: Exerting one’s self to the utmost degree to attain an

object or form an opinion or a rule of law. Independent
interpretation of law-considered opinion of the Mujtahids or
specialists becomes law. The exercise of the independent
judgment was not permitted after some time. This is known
as, “The closer of the gate of interpretation during the 4th
century /10th century”.

• Taqlid: Imitation or following the opinion of another person

without knowledge of the authority for such opinion. (Layman
blindly following).

Whether the gates of Ijtihad or independent exposition or interpretation

are open or not controversies are still prevalent. Islamic law is not a
corpus of legislative activity, but a science developed by juristic thought.
However, there is hardly any chance of anybody to have the rank of
Mujtahid at present. Unless a bold step is taken as suggested by thinker
Iqbal1 and the power of Ijtihad is resided in the body of learned Muslim
scholars its door will not open.

1 Iqbal: Reconstruction of of Islam. Lahore 1930.

 5. The fifth period is 1929 A.D till date a period wherein great inroads
have been made by the secular law in all Muslim countries. This
tendency is likely to prevent unless we prevent it. Otherwise, Islamic
law will be largely secularized and it will be death to family law as
was done by Turkey and Albania.

Summary:

• Flight from Mecca -622 (beginning of Muslim era)

• Mohammad (PBH) dies in AD 632 (10 A.H)

The first Caliphs were his disciples and early companions:

Abu Bakr (A.D 632)

Umar (A.D 634)

Osman (A.D 644)

Ali (A.D 656)

Hussain (A.D 680) in Karbala

The death of Hussain at Karbala made the breach between the Sunnis and
the Shias. Yazid was in the throne. Muavia was founder of the Omeyads thou
Abbasides succeed in the capital at Baghdad (for 5 centuries). Then the
Othmans (Turks) who ruled in Constantinople in 1538 A.D the Sultan of
Turkey assumed the title of Caliph. The Caliphate was abolished by Mustafa
Kamal Pasha in 1929.