Various sources of Islamic Laws are used by
Islamic jurisprudence
''Fiqh'' (; ar, فقه ) is Islamic jurisprudence. Muhammad-> Companions-> Followers-> Fiqh.
The commands and prohibitions chosen by God were revealed through the agency of the Prophet in both the Quran and the Sunnah (words, deeds, and e ...
to elaborate the body of
Islamic
Islam (; ar, ۘالِإسلَام, , ) is an Abrahamic monotheistic religion centred primarily around the Quran, a religious text considered by Muslims to be the direct word of God (or '' Allah'') as it was revealed to Muhammad, the mai ...
law.
In
Sunni
Sunni Islam () is the largest branch of Islam, followed by 85–90% of the world's Muslims. Its name comes from the word '' Sunnah'', referring to the tradition of Muhammad. The differences between Sunni and Shia Muslims arose from a disagr ...
Islam, the scriptural sources of traditional jurisprudence are the
Holy Qur'an
The Quran (, ; Standard Arabic: , Quranic Arabic: , , 'the recitation'), also romanized Qur'an or Koran, is the central religious text of Islam, believed by Muslims to be a revelation from God. It is organized in 114 chapters (pl.: , sin ...
, believed by Muslims to be the direct and unaltered word of
God
In monotheism, monotheistic thought, God is usually viewed as the supreme being, creator deity, creator, and principal object of Faith#Religious views, faith.Richard Swinburne, Swinburne, R.G. "God" in Ted Honderich, Honderich, Ted. (ed)''The Ox ...
, and the
Sunnah
In Islam, , also spelled ( ar, سنة), are the traditions and practices of the Islamic prophet Muhammad that constitute a model for Muslims to follow. The sunnah is what all the Muslims of Muhammad's time evidently saw and followed and passed ...
, consisting of words and actions attributed to the
Islamic prophet
Prophets in Islam ( ar, الأنبياء في الإسلام, translit=al-ʾAnbiyāʾ fī al-ʾIslām) are individuals in Islam who are believed to spread God in Islam, God's message on Earth and to serve as models of ideal human behaviour. So ...
Muhammad
Muhammad ( ar, مُحَمَّد; 570 – 8 June 632 Common Era, CE) was an Arab religious, social, and political leader and the founder of Islam. According to Muhammad in Islam, Islamic doctrine, he was a prophet Divine inspiration, di ...
in the
hadith
Ḥadīth ( or ; ar, حديث, , , , , , , literally "talk" or "discourse") or Athar ( ar, أثر, , literally "remnant"/"effect") refers to what the majority of Muslims believe to be a record of the words, actions, and the silent approval ...
literature. In
Shi'ite
Shīʿa Islam or Shīʿīsm is the second-largest branch of Islam. It holds that the Islamic prophet Muhammad designated ʿAlī ibn Abī Ṭālib as his successor (''khalīfa'') and the Imam (spiritual and political leader) after him, most n ...
jurisprudence, the notion of Sunnah is extended to include traditions of the
Imam
Imam (; ar, إمام '; plural: ') is an Islamic leadership position. For Sunni Muslims, Imam is most commonly used as the title of a worship leader of a mosque. In this context, imams may lead Islamic worship services, lead prayers, ser ...
s.
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.
According to
Sunni
Sunni Islam () is the largest branch of Islam, followed by 85–90% of the world's Muslims. Its name comes from the word '' Sunnah'', referring to the tradition of Muhammad. The differences between Sunni and Shia Muslims arose from a disagr ...
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
The public interest is "the welfare or well-being of the general public" and society.
Overview
Economist Lok Sang Ho in his ''Public Policy and the Public Interest'' argues that the public interest must be assessed impartially and, therefore ...
;
juristic discretion; the
rulings of the
first generation of Muslims; and
local customs.
Hanafi
The Hanafi school ( ar, حَنَفِية, translit=Ḥanafiyah; also called Hanafite in English), Hanafism, or the Hanafi fiqh, is the oldest and one of the four traditional major Sunni schools ( maddhab) of Islamic Law (Fiqh). It is named aft ...
school frequently relies on analogical deduction and independent reasoning, and
Maliki
The ( ar, مَالِكِي) school is one of the four major schools of Islamic jurisprudence within Sunni Islam. It was founded by Malik ibn Anas in the 8th century. The Maliki school of jurisprudence relies on the Quran and hadiths as primary ...
and
Hanbali
The Hanbali school ( ar, ٱلْمَذْهَب ٱلْحَنۢبَلِي, al-maḏhab al-ḥanbalī) is one of the four major traditional Sunni schools (''madhahib'') of Islamic jurisprudence. It is named after the Arab scholar Ahmad ibn Hanbal ...
generally use the
Hadith
Ḥadīth ( or ; ar, حديث, , , , , , , literally "talk" or "discourse") or Athar ( ar, أثر, , literally "remnant"/"effect") refers to what the majority of Muslims believe to be a record of the words, actions, and the silent approval ...
instead.
Shafi'i
The Shafii ( ar, شَافِعِي, translit=Shāfiʿī, also spelled Shafei) school, also known as Madhhab al-Shāfiʿī, is one of the four major traditional schools of religious law (madhhab) in the Sunnī branch of Islam. It was founded by ...
school uses Sunnah more than Hanafi and analogy more than two others.
Among
Shia
Shīʿa Islam or Shīʿīsm is the second-largest Islamic schools and branches, branch of Islam. It holds that the Prophets and messengers in Islam, Islamic prophet Muhammad in Islam, Muhammad designated Ali, ʿAlī ibn Abī Ṭālib as his S ...
,
Usuli
Usulis ( ar, اصولیون, fa, اصولیان) are the majority Twelver Shi'a Muslim group. They differ from their now much smaller rival Akhbari group in favoring the use of ''ijtihad'' (i.e., reasoning) in the creation of new rules of ''fiq ...
school of
Ja'fari jurisprudence
Jaʿfarī jurisprudence ( ar, الفقه الجعفري; also called Jafarite in English), Jaʿfarī school or Jaʿfarī fiqh, is the school of jurisprudence (''fiqh'') in Twelver and Ismaili (including Nizari) Shia Islam, named after the sixth ...
uses four sources, which are Qur'an, Sunnah, consensus and the
intellect
In the study of the human mind, intellect refers to, describes, and identifies the ability of the human mind to reach correct conclusions about what is true and what is false in reality; and how to solve problems. Derived from the Ancient Gree ...
. 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
The ʾAkhbāri's ( ar, أخباریون, fa, اخباریان) are a minority of Twelver Shia Muslims who reject the use of reasoning in deriving verdicts, and believe in Quran and Hadith.
The term ʾAkhbāri's (from ''khabāra'', news or r ...
Ja'faris rely more on scriptural sources and reject
ijtihad
''Ijtihad'' ( ; ar, اجتهاد ', ; lit. physical or mental ''effort'') is an Islamic legal term referring to independent reasoning by an expert in Islamic law, or the thorough exertion of a jurist's mental faculty in finding a solution to a le ...
.
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.
Primary sources
Qur’an
![Opened Qur'an](https://upload.wikimedia.org/wikipedia/commons/7/7b/Opened_Qur%27an.jpg)
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 Abrahamic religions (Judaism, Christianity and Islam), Gabriel (); Greek: grc, Γαβριήλ, translit=Gabriḗl, label=none; Latin: ''Gabriel''; Coptic: cop, Ⲅⲁⲃⲣⲓⲏⲗ, translit=Gabriêl, label=none; Amharic: am, ገብር ...
in
Mecca
Mecca (; officially Makkah al-Mukarramah, commonly shortened to Makkah ()) is a city and administrative center of the Mecca Province of Saudi Arabia, and the Holiest sites in Islam, holiest city in Islam. It is inland from Jeddah on the Red ...
and
Medina
Medina,, ', "the radiant city"; or , ', (), "the city" officially Al Madinah Al Munawwarah (, , Turkish: Medine-i Münevvere) and also commonly simplified as Madīnah or Madinah (, ), is the Holiest sites in Islam, second-holiest city in Islam, ...
, the scripture specifies the moral, philosophical, social, political and
economic
An economy is an area of the Production (economics), production, Distribution (economics), distribution and trade, as well as Consumption (economics), consumption of Goods (economics), goods and Service (economics), services. In general, it is ...
basis on which a society should be constructed. The verses revealed in Mecca deal with
philosophical
Philosophy (from , ) is the systematized study of general and fundamental questions, such as those about existence, reason, knowledge, values, mind, and language. Such questions are often posed as problems to be studied or resolved. Some ...
and
theological
Theology is the systematic study of the nature of the divine and, more broadly, of religious belief. It is taught as an academic discipline, typically in universities and seminaries. It occupies itself with the unique content of analyzing the ...
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.
[
The verses of the Qur'an are categorized into three fields: "science of speculative theology", "]ethical principles
Ethics or moral philosophy is a branch of philosophy that "involves systematizing, defending, and recommending concepts of right and wrong behavior".''Internet Encyclopedia of Philosophy'' The field of ethics, along with aesthetics, concerns ma ...
" 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
Imam (; ar, إمام '; plural: ') is an Islamic leadership position. For Sunni Muslims, Imam is most commonly used as the title of a worship leader of a mosque. In this context, imams may lead Islamic worship services, lead prayers, serve ...
for Shias are considered the most authentic, since they knew why, where and on what occasion each verse was revealed.[Nomani and Rahnema (1994), pp. 3–4]
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
Shīʿa Islam or Shīʿīsm is the second-largest branch of Islam. It holds that the Islamic prophet Muhammad designated ʿAlī ibn Abī Ṭālib as his successor (''khalīfa'') and the Imam (spiritual and political leader) after him, most n ...
jurists, the sunnah also includes the words, deeds and acknowledgments of the twelve Imams
The Twelve Imams ( ar, ٱلْأَئِمَّة ٱلْٱثْنَا عَشَر, '; fa, دوازده امام, ') are the spiritual and political successors to the Islamic prophet Muhammad in the Twelver branch of Islam, including that of the Alawi ...
and Fatimah
Fāṭima bint Muḥammad ( ar, فَاطِمَة ٱبْنَت مُحَمَّد}, 605/15–632 CE), commonly known as Fāṭima al-Zahrāʾ (), was the daughter of the Islamic prophet Muhammad and his wife Khadija. Fatima's husband was Ali, th ...
, Muhammad's daughter, who are believed to be infallible
Infallibility refers to an inability to be wrong. It can be applied within a specific domain, or it can be used as a more general adjective. The term has significance in both epistemology and theology, and its meaning and significance in both fi ...
.[Nomani and Rahnema (1994), pp. 4–7]
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. During his lifetime, Muhammad made it clear that his traditions (along with the Qur'an) should be followed after his death. The overwhelming majority of Muslims consider the sunnah to be essential supplements to and clarifications of the Qur'an
The Quran (, ; Standard Arabic: , Quranic Arabic: , , 'the recitation'), also romanized Qur'an or Koran, is the central religious text of Islam, believed by Muslims to be a revelation from God. It is organized in 114 chapters (pl.: , sing. ...
. 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
In Islam, , also spelled ( ar, سنة), are the traditions and practices of the Islamic prophet Muhammad that constitute a model for Muslims to follow. The sunnah is what all the Muslims of Muhammad's time evidently saw and followed and passed ...
'', of Muhammad and his companions to discover what to imitate and what to avoid.
Much of the sunnah is recorded in the Hadith
Ḥadīth ( or ; ar, حديث, , , , , , , literally "talk" or "discourse") or Athar ( ar, أثر, , literally "remnant"/"effect") refers to what the majority of Muslims believe to be a record of the words, actions, and the silent approval ...
. 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.[ Due to problems of authenticity, the ]science of Hadith
Hadith studies ( ar, علم الحديث ''ʻilm al-ḥadīth'' "science of hadith", also science of hadith, or science of hadith criticism or hadith criticism)
consists of several religious scholarly disciplines used by Muslim scholars in th ...
(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.["Hadith", ''Encyclopedia of Islam''.]
To establish the authenticity of a particular Hadith or report, it had to be checked by following the chain of transmission (''isnad
Hadith studies ( ar, علم الحديث ''ʻilm al-ḥadīth'' "science of hadith", also science of hadith, or science of hadith criticism or hadith criticism)
consists of several religious scholarly disciplines used by Muslim scholars in th ...
''). 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.[ 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. Examples of biographical dictionaries include ]Ibn Hajar al-Asqalani
Ibn Ḥajar al-ʿAsqalānī or ''Ibn Ḥajar'' ( ar, ابن حجر العسقلاني, full name: ''Shihābud-Dīn Abul-Faḍl Aḥmad ibn Nūrud-Dīn ʿAlī ibn Muḥammad ibn Ḥajar al-ʿAsqalānī al-Kināni'') (18 February 1372 – 2 Febru ...
's "'' Tahdhīb al-Tahdhīb''" or al-Dhahabi
Shams ad-Dīn adh-Dhahabī (), also known as Shams ad-Dīn Abū ʿAbdillāh Muḥammad ibn Aḥmad ibn ʿUthmān ibn Qāymāẓ ibn ʿAbdillāh at-Turkumānī al-Fāriqī ad-Dimashqī (5 October 1274 – 3 February 1348) was an Islamic historia ...
's "'' Tadhkirat al-huffāz''."
Using this criterion, Hadith are classified into three categories:[
#Undubitable ('']mutawatir
Hadith terminology ( ar, مصطلح الحديث, muṣṭalaḥu l-ḥadīth) is the body of terminology in Islam which specifies the acceptability of the sayings (''hadith'') attributed to the Islamic prophet Muhammad by other early Islamic f ...
''), which are very widely known, and backed up by numerous references.
#Widespread (''mashhur''), which are widely known, but backed up with few original references.
#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.
Consensus
The ''ijma' '', or consensus amongst Muslim jurists
In Islam, the ''ulama'' (; ar, علماء ', singular ', "scholar", literally "the learned ones", also spelled ''ulema''; feminine: ''alimah'' ingularand ''aalimath'' lural are the guardians, transmitters, and interpreters of religious ...
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.[Mahmasani, S. ''Falsafe-e Ghanoongozari dar Eslam''. Tehran: Amir Kabir. p. 143] Muhammad himself said:
*"My followers will never agree upon an error or what is wrong",
*"God's hand is with the entire community".[
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.][Encyclopædia Britannica, ''Ijma''.] This is so because ''ijma' '' represents the unanimous agreement of Muslims on a regulation or law at any given time.
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.[Nomani and Rahnema (1994), pp. 7–9] ''Ijma' '' was always used to refer to agreement reached in the past, either remote or near.[ Amongst the Sunni jurists there is diversity on who is eligible to participate in ''ijma' '', as shown in the following table:
In modern Muslim usage it is no longer associated with traditional authority and appears as democratic institution and an instrument of reform.][
]
Analogical reason
''Qiyas'' or analogical reason is the fourth source of Sharia
Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the H ...
for the majority of Sunni
Sunni Islam () is the largest branch of Islam, followed by 85–90% of the world's Muslims. Its name comes from the word '' Sunnah'', referring to the tradition of Muhammad. The differences between Sunni and Shia Muslims arose from a disagr ...
jurisprudence. It aims to draw analogies to a previously accepted decision. Shiite
Shīʿa Islam or Shīʿīsm is the second-largest branch of Islam. It holds that the Islamic prophet Muhammad designated ʿAlī ibn Abī Ṭālib as his successor (''khalīfa'') and the Imam (spiritual and political leader) after him, most ...
s do not accept analogy, but replace it with reason ('' aql''); among Sunnis, the Hanbali
The Hanbali school ( ar, ٱلْمَذْهَب ٱلْحَنۢبَلِي, al-maḏhab al-ḥanbalī) is one of the four major traditional Sunni schools (''madhahib'') of Islamic jurisprudence. It is named after the Arab scholar Ahmad ibn Hanbal ...
tes have traditionally been reluctant to accept analogy while the Zahiri
The Ẓāhirī ( ar, ظاهري, otherwise transliterated as ''Dhāhirī'') ''madhhab'' or al-Ẓāhirīyyah ( ar, الظاهرية) is a Sunnī school of Islamic jurisprudence founded by Dāwūd al-Ẓāhirī in the 9th century CE. It is chara ...
tes 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
The Quran (, ; Standard Arabic: , Quranic Arabic: , , 'the recitation'), also romanized Qur'an or Koran, is the central religious text of Islam, believed by Muslims to be a revelation from God. It is organized in 114 chapters (pl.: , sing. ...
and Sunnah
In Islam, , also spelled ( ar, سنة), are the traditions and practices of the Islamic prophet Muhammad that constitute a model for Muslims to follow. The sunnah is what all the Muslims of Muhammad's time evidently saw and followed and passed ...
. Legally sound analogy must not be based on arbitrary judgment, but rather be firmly rooted in the primary sources.[Nomani and Rahnema (1994), pp. 9–12]
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." 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
''Ijmāʿ'' ( ar, إجماع , " consensus") is an Arabic term referring to the consensus or agreement of the Islamic community on a point of Islamic law. Sunni Muslims regard ''ijmā as one of the secondary sources of Sharia law, after the Qur ...
, or consensus, amongst Muhammad's companions
The Companions of the Prophet ( ar, اَلصَّحَابَةُ; ''aṣ-ṣaḥāba'' meaning "the companions", from the verb meaning "accompany", "keep company with", "associate with") were the disciples and followers of Muhammad who saw or m ...
.[ Islamic studies scholar ]Bernard G. Weiss
Bernard G. Weiss (10 August 1933 – 8 February 2018) was a professor of languages and literature at the University of Utah. He has an extensive publication record and is recognized as one of the foremost scholars in Islamic law, Islamic theolog ...
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. 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 Persia
Iran, officially the Islamic Republic of Iran, and also called Persia, is a country located in Western Asia. It is bordered by Iraq and Turkey to the west, by Azerbaijan and Armenia to the northwest, by the Caspian Sea and Turkmeni ...
ns. With such contact, new problems emerged for Islamic law to tackle. Moreover, there was a significant distance between Medina
Medina,, ', "the radiant city"; or , ', (), "the city" officially Al Madinah Al Munawwarah (, , Turkish: Medine-i Münevvere) and also commonly simplified as Madīnah or Madinah (, ), is the Holiest sites in Islam, second-holiest city in Islam, ...
, 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
Umayyad dynasty ( ar, بَنُو أُمَيَّةَ, Banū Umayya, Sons of Umayya) or Umayyads ( ar, الأمويون, al-Umawiyyūn) were the ruling family of the Caliphate between 661 and 750 and later of Al-Andalus between 756 and 1031. In the ...
, the concept of ''qiyas'' was abused by the rulers. The Abbasid
The Abbasid Caliphate ( or ; ar, الْخِلَافَةُ الْعَبَّاسِيَّة, ') was the third caliphate to succeed the Islamic prophet Muhammad. It was founded by a dynasty descended from Muhammad's uncle, Abbas ibn Abdul-Muttalib ...
s, who succeeded the Umayyads defined it more strictly, in an attempt to apply it more consistently.[
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 ]intoxicant
A psychoactive drug, psychopharmaceutical, psychoactive agent or psychotropic drug is a chemical substance, that changes functions of the nervous system, and results in alterations in perception, mood, consciousness, cognition or behavior.
Th ...
s are forbidden.[
The ]Hanafi
The Hanafi school ( ar, حَنَفِية, translit=Ḥanafiyah; also called Hanafite in English), Hanafism, or the Hanafi fiqh, is the oldest and one of the four traditional major Sunni schools ( maddhab) of Islamic Law (Fiqh). It is named aft ...
school of thought
A school of thought, or intellectual tradition, is the perspective of a group of people who share common characteristics of opinion or outlook of a philosophy, discipline, belief, social movement, economics, cultural movement, or art movement.
H ...
very strongly supports ''qiyas''. Imam
Imam (; ar, إمام '; plural: ') is an Islamic leadership position. For Sunni Muslims, Imam is most commonly used as the title of a worship leader of a mosque. In this context, imams may lead Islamic worship services, lead prayers, ser ...
Abu Hanifa
Nuʿmān ibn Thābit ibn Zūṭā ibn Marzubān ( ar, نعمان بن ثابت بن زوطا بن مرزبان; –767), commonly known by his '' kunya'' Abū Ḥanīfa ( ar, أبو حنيفة), or reverently as Imam Abū Ḥanīfa by Sunni Mus ...
, an important practitioner of ''qiyas'', elevated ''qiyas'' to a position of great significance in Islamic law
Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the ...
. 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.[
The ]Shafi'i
The Shafii ( ar, شَافِعِي, translit=Shāfiʿī, also spelled Shafei) school, also known as Madhhab al-Shāfiʿī, is one of the four major traditional schools of religious law (madhhab) in the Sunnī branch of Islam. It was founded by ...
school of thought
A school of thought, or intellectual tradition, is the perspective of a group of people who share common characteristics of opinion or outlook of a philosophy, discipline, belief, social movement, economics, cultural movement, or art movement.
H ...
accepts ''qiyas'' as a valid source. Imam Shafi'i, however, considered it a weak source, and tried to limit the cases where jurists would need to resort to ''qiyas''. He criticized and rejected analogical deductions that were not firmly rooted in the Qur'an
The Quran (, ; Standard Arabic: , Quranic Arabic: , , 'the recitation'), also romanized Qur'an or Koran, is the central religious text of Islam, believed by Muslims to be a revelation from God. It is organized in 114 chapters (pl.: , sing. ...
and sunnah
In Islam, , also spelled ( ar, سنة), are the traditions and practices of the Islamic prophet Muhammad that constitute a model for Muslims to follow. The sunnah is what all the Muslims of Muhammad's time evidently saw and followed and passed ...
. According to Shafi'i
The Shafii ( ar, شَافِعِي, translit=Shāfiʿī, also spelled Shafei) school, also known as Madhhab al-Shāfiʿī, is one of the four major traditional schools of religious law (madhhab) in the Sunnī branch of Islam. It was founded by ...
, if analogical deductions were not strictly rooted in primary sources, they would have adverse effects. One such consequence could be variety of different rulings in the same subject. Such a situation, he argued, would undermine the predictability and uniformity of a sound legal system.
[Nomani and Rahnema (1994), pp. 13–15]
Imam Malik
Malik ibn Anas ( ar, مَالِك بن أَنَس, 711–795 CE / 93–179 AH), whose full name is Mālik bin Anas bin Mālik bin Abī ʿĀmir bin ʿAmr bin Al-Ḥārith bin Ghaymān bin Khuthayn bin ʿAmr bin Al-Ḥārith al-Aṣbaḥī ...
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".[
]
Juristic preference
Abu Hanifa
Nuʿmān ibn Thābit ibn Zūṭā ibn Marzubān ( ar, نعمان بن ثابت بن زوطا بن مرزبان; –767), commonly known by his '' kunya'' Abū Ḥanīfa ( ar, أبو حنيفة), or reverently as Imam Abū Ḥanīfa by Sunni Mus ...
developed a new source known as juristic preference.[Encyclopædia Britannica, ''Istihsan''] Juristic preference is defined as:
*A means to seek ease and convenience,
*To adopt tolerance and moderation,
*To over-rule analogical reason, if necessary.[
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.][ The doctrine was justified directly by the Qur'anic verse stating: "Allah desires you ease and good, not hardship".][Hasan (2004), pp. 157–160] 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, and its opponents claimed that it often departs from the primary sources.[
This doctrine was useful in the ]Islamic world
The terms Muslim world and Islamic world commonly refer to the Islamic community, which is also known as the Ummah. This consists of all those who adhere to the religious beliefs and laws of Islam or to societies in which Islam is practiced. In ...
outside the Middle East where the Muslims encountered environments and challenges they had been unfamiliar with in Arabia
The Arabian Peninsula, (; ar, شِبْهُ الْجَزِيرَةِ الْعَرَبِيَّة, , "Arabian Peninsula" or , , "Island of the Arabs") or Arabia, is a peninsula of Western Asia, situated northeast of Africa on the Arabian Plate. ...
.[ One example of isthisan is cited as follows: If a well is ]contaminated
Contamination is the presence of a constituent, impurity, or some other undesirable element that spoils, corrupts, infects, makes unfit, or makes inferior a material, physical body, natural environment, workplace, etc.
Types of contamination
...
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.[
]
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
A jurist is a person with expert knowledge of law; someone who analyses and comments on law. This person is usually a specialist legal scholar, mostly (but not always) with a formal qualification in law and often a legal practitioner. In the Uni ...
uses his wisdom to pursue public interest. This source is rejected by the Shafi'ites, Hanbalites and Zahirites from Sunni jurisprudence.[
]
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
Inferences are steps in reasoning, moving from premises to logical consequences; etymologically, the word '' infer'' means to "carry forward". Inference is theoretically traditionally divided into deduction and induction, a distinction that in ...
, 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
Legislation is the process or result of enrolled bill, enrolling, enactment of a bill, enacting, or promulgation, promulgating laws by a legislature, parliament, or analogous Government, governing body. Before an item of legislation becomes law i ...
.[
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.
]
Reason
Shi'ite
Shīʿa Islam or Shīʿīsm is the second-largest branch of Islam. It holds that the Islamic prophet Muhammad designated ʿAlī ibn Abī Ṭālib as his successor (''khalīfa'') and the Imam (spiritual and political leader) after him, most n ...
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.[Nomani and Rahnema (1994), pp. 15–16]
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
Baghdad (; ar, بَغْدَاد , ) is the capital of Iraq and the second-largest city in the Arab world after Cairo. It is located on the Tigris near the ruins of the ancient city of Babylon and the Sassanid Persian capital of Ctesiphon ...
, Nishapur
Nishapur or officially Romanized as Neyshabur ( fa, ;Or also "نیشاپور" which is closer to its original and historic meaning though it is less commonly used by modern native Persian speakers. In Persian poetry, the name of this city is wr ...
, and Bukhara
Bukhara (Uzbek language, Uzbek: /, ; tg, Бухоро, ) is the List of cities in Uzbekistan, seventh-largest city in Uzbekistan, with a population of 280,187 , and the capital of Bukhara Region.
People have inhabited the region around Bukhara ...
) had fallen into the hands of the Mongols. Thus, the "doors to ijtihad", were closed.[ In Sunni Islam, thus, ijtihad was replaced by ''taqlid'' or the acceptance of doctrines developed previously.][Ijtihad, ''Encyclopaedia of Islam''] 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
Ibn Taymiyyah (January 22, 1263 – September 26, 1328; ar, ابن تيمية), birth name Taqī ad-Dīn ʾAḥmad ibn ʿAbd al-Ḥalīm ibn ʿAbd al-Salām al-Numayrī al-Ḥarrānī ( ar, تقي الدين أحمد بن عبد الحليم ...
(d. 728/1328), another was Ibn Rus̲h̲d (Averroes d. 595/1198).[
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.][ʻAlwānī (1973), p. 9]
A lawyer who is qualified to use this source is called a ''mujtahid''. The founders of the Sunni madhab
A ( ar, مذهب ', , "way to act". pl. مَذَاهِب , ) is a school of thought within '' fiqh'' (Islamic jurisprudence).
The major Sunni Mathhab are Hanafi, Maliki, Shafi'i and Hanbali.
They emerged in the ninth and tenth centurie ...
s (schools of law) were considered such lawyers. All ''mujtahid'' exercise at the same time the powers of a ''mufti
A Mufti (; ar, مفتي) is an Islamic jurist qualified to issue a nonbinding opinion ('' fatwa'') on a point of Islamic law (''sharia''). The act of issuing fatwas is called ''iftāʾ''. Muftis and their ''fatwas'' played an important rol ...
'' and can give ''fatwa
A fatwā ( ; ar, فتوى; plural ''fatāwā'' ) is a legal ruling on a point of Islamic law (''sharia'') given by a qualified '' Faqih'' (Islamic jurist) in response to a question posed by a private individual, judge or government. A jurist i ...
''. Some ''mujtahid'' have claimed to be ''muj̲addid'', 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.[
]
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,["Urf", ''Encyclopaedia of Islam''] 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
In monotheism, monotheistic thought, God is usually viewed as the supreme being, creator deity, creator, and principal object of Faith#Religious views, faith.Richard Swinburne, Swinburne, R.G. "God" in Ted Honderich, Honderich, Ted. (ed)''The Ox ...
. 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
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
".[Hasan (2004), pp. 169–71]
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 source. Later, al-Sarak̲h̲sī (d. 483/1090) opposed it, holding that custom cannot prevail over a written text.[
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.][ 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
''Fiqh'' (; ar, فقه ) is Islamic jurisprudence. Muhammad-> Companions-> Followers-> Fiqh.
The commands and prohibitions chosen by God were revealed through the agency of the Prophet in both the Quran and the Sunnah (words, deeds, and ...
*Ijazah
An ''ijazah'' ( ar, الإِجازَة, "permission", "authorization", "license"; plural: ''ijazahs'' or ''ijazat'') is a license authorizing its holder to transmit a certain text or subject, which is issued by someone already possessing such au ...
*Madrasa
Madrasa (, also , ; Arabic: مدرسة , pl. , ) is the Arabic word for any type of educational institution, secular or religious (of any religion), whether for elementary instruction or higher learning. The word is variously transliterated '' ...
Notes
References
*ʻAlwānī, Ṭāhā Jābir Fayyāḍ. ''Uṣūl Al Fiqh Al Islāmī''. IIT. Based on the author's PhD thesis at Al-Azhar University
, image = جامعة_الأزهر_بالقاهرة.jpg
, image_size = 250
, caption = Al-Azhar University portal
, motto =
, established =
*970/972 first foundat ...
.
*
*
*
*
*Qadri, A. A (1986). ''Islamic jurisprudence in the Modern World''. New Delhi: Taj Company.
Encyclopedias
*
*Libson, G.; Stewart, F.H. "ʿUrf." Encyclopaedia of Islam
The ''Encyclopaedia of Islam'' (''EI'') is an encyclopaedia of the academic discipline of Islamic studies published by Brill. It is considered to be the standard reference work in the field of Islamic studies. The first edition was published in ...
. Edited by: P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel and W.P. Heinrichs. Brill, 2008. Brill Online
Brill Academic Publishers (known as E. J. Brill, Koninklijke Brill, Brill ()) is a Dutch international academic publisher founded in 1683 in Leiden, Netherlands. With offices in Leiden, Boston, Paderborn and Singapore, Brill today publishes 27 ...
. 10 April 2008
Further reading
* Fadlalla, Mohamed; Lang, Peter. ''Das islamische Ehe- und Kindschaftsrecht im Sudan'', Frankfurt, 2001.
* Fadlalla, Mohamed. ''Die Problematik der Anerkennung ausländischer Gerichtsurteile: Beiträge zum Internationalen Zivilprozessrecht und zur Schiedsbarkeit''. Tectum, 2004.
* Glassé, Cyril. ''The Concise Encyclopaedia of Islam'', 2nd Edition. London: Stacey International, 1991.
* Goldziher, Ignaz; translated by Hamori, R. ''Introduction to Islamic Theology and Law''. Princeton
Princeton University is a private research university in Princeton, New Jersey. Founded in 1746 in Elizabeth as the College of New Jersey, Princeton is the fourth-oldest institution of higher education in the United States and one of the ni ...
: Princeton University Press
Princeton University Press is an independent publisher with close connections to Princeton University. Its mission is to disseminate scholarship within academia and society at large.
The press was founded by Whitney Darrow, with the financial su ...
, 1981.
* 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.
* 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
Morteza Motahhari ( fa, مرتضی مطهری, also Romanized as "Mortezā Motahharī"; 31 January 1919 – 1 May 1979) was an Iranian Twelver Shia scholar, philosopher, lecturer. Motahhari is considered to have an important influence on th ...
The Principle of Ijtihad in Islam
by Morteza Motahhari
Morteza Motahhari ( fa, مرتضی مطهری, also Romanized as "Mortezā Motahharī"; 31 January 1919 – 1 May 1979) was an Iranian Twelver Shia scholar, philosopher, lecturer. Motahhari is considered to have an important influence on th ...
The Role of Ijtihad in Legislation
by Morteza Motahhari
Morteza Motahhari ( fa, مرتضی مطهری, also Romanized as "Mortezā Motahharī"; 31 January 1919 – 1 May 1979) was an Iranian Twelver Shia scholar, philosopher, lecturer. Motahhari is considered to have an important influence on th ...
{{DEFAULTSORT:Sources Of Islamic Law
Islamic jurisprudence
Sharia