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Sources of Islamic Law: An Overview

Islamic jurisprudence relies on various sources to explain and implement Sharia, the body of Islamic law. The primary sources, universally accepted by all Muslims, are the Koran and Sunnah.

 The Koran 

• The Koran is considered the holy scripture of Islam, believed by Muslims to be the direct and unaltered word of Allah.

 The Sunnah 

• The Sunnah comprises the religious actions and sayings of the Prophet Muhammad, as narrated by his Companions and Shia Imams.

 Secondary Sources in Sunni Jurisprudence 

• Consensus among Muslim jurists
• Analogical deduction
• Independent reasoning
• Benefit for the Community
• Custom

 Differences Among Sunni Schools 

 Hanafi School:  Relies on analogical deduction and independent reasoning.

 Maliki and Hanbali Schools:  Generally use Hadith.

 Shafi'i School:  Uses Sunnah more than Hanafi and analogy more than the other two.

 Shia Jurisprudence: Usuli School 

• Sources: Koran, Sunnah, consensus, and intellect (aql).
• Ijma (consensus) is used under special conditions.
• Aql is employed to derive general principles from the Koran and Sunnah.
• Usul al-fiqh is the methodology for interpreting the Koran and Sunnah in various circumstances.

 Akhbari Jafaris 

• Akhbari Jafaris rely more on Hadith and reject ijtihad (independent reasoning).

 Practical Application 

• Despite differences in the principles of jurisprudence between Shia and Sunni schools, there are fewer differences in the practical application of jurisprudence to ritual observances and social transactions.

 Ancient Sources 

 Preliminary Sources 

 The Koran 

• The Koran is the primary and most significant source of Islamic law, believed to be the direct word of God as revealed to Muhammad by the angel Gabriel.
• It provides the moral, philosophical, social, political, and economic foundations for society. The verses revealed in Mecca focus on philosophical and theological issues, while those from Medina address socio-economic laws.
• The Koran was written and preserved during Muhammad's lifetime and compiled shortly after his death. Muslim jurists agree that it is not a legal code in the modern sense but a guide for regulating human relationships with others and with God.
• The verses are divided into three categories: "science of speculative theology," "ethical principles," and "rules of human conduct." About five hundred verses, or one-thirteenth of the Koran, pertain to legal matters.
• Interpretations of the Koran have led to various opinions, with the explanations by Muhammad's companions for Sunnis and by Imams for Shias considered the most authentic.

 Sunnah 

•  Definition of Sunnah:  The Sunnah is a crucial source of Islamic law, defined as the traditions and customs of the Prophet Muhammad. It encompasses his sayings, actions, and silent approvals.
•  Sunnah According to Shi'ite Jurists:  For Shi'ite Muslims, the Sunnah also includes the teachings and actions of the twelve Imams and Fatimah, Muhammad's daughter, who are regarded as infallible.
•  Justification from the Quran:  The Quran commands Muslims to follow Muhammad, and he emphasized the importance of his traditions alongside the Quran for guidance after his death.
•  Role of Sunnah in Islamic Jurisprudence:  The Sunnah serves to clarify and supplement the Quran, providing guidance on matters not explicitly covered in the holy text.
•  Recording of Sunnah in Hadith:  The Sunnah is primarily recorded in the Hadith, which are collections of Muhammad's sayings and actions. Initially, he discouraged writing down his actions to avoid confusion with the Quran but encouraged the oral transmission of his sayings.
•  Need for Hadith Collections:  After Muhammad's death, confusion arose regarding his conduct, leading to the establishment of Hadith collections.
•  Science of Hadith:  The science of Hadith, or Ulum al-hadith, was developed to determine the authenticity of reports about Muhammad. It involves analyzing the text, transmission scale, routes, and narrators of the reports.
•  Criteria for Hadith Classification:  Based on the criteria of authenticity, various classifications of Hadith were developed by early Muslim scholars.

Secondary Sources in Medieval Muslim Jurisprudence

Medieval Muslim jurists rejected arbitrary opinion and instead developed various secondary sources, also known as juristic principles or doctrines, to follow when the primary sources, namely the Koran and Sunnah, are silent on a particular issue.

 Ijma 

• Ijma can be seen as judge-made law or interpretations based on wisdom.
• While the Koran and Sunnah focus on the past, Ijma and Kiyas look towards the future.
• The orthodox Muslim belief is that humans must use their intellect to understand these sources, leading to the development of Ijma.
• Ijma is considered the "Foundation of foundations."
• The validity of Ijma is based on a Sunnah of the Prophet, which states, "God will not allow his people to agree on an error."
• Sunni jurisprudence relies heavily on Ijmas.
• Hanafi scholars believe that law should adapt to changing times, a principle reflected in Ijma.
• According to Sunni doctrine, only deeply learned Muslim Mujtahids (jurists) can participate in forming Ijma.
• All Sunni schools accept Ijma as a source of law, except the Hanbals, who interpret traditions of the Prophet more liberally.
• As Islam expanded globally, the Koran and Sunnah were sometimes seen as insufficient, leading to the development of Ijmas.

 Qiyas / Kiyas 

• Qiyas, or analogical deduction, is the fourth source of Sharia in Sunni jurisprudence.
• Shiites do not accept qiyas, opting for reason instead.
• Qiyas involves legal deduction where jurists, faced with unprecedented cases, base their arguments on logic derived from the Koran and Sunnah.
• It is crucial that qiyas is not based on arbitrary judgment but is firmly anchored in primary sources.
• Proponents of qiyas often reference passages in the Koran that illustrate similar processes used by past Islamic communities.
• According to Hadith, Muhammad stated, "Where there is no revealed injunction, I will judge amongst you according to reason," extending this right to others as well.
• Qiyas is further validated by the ijma, or consensus, among Muhammad's companions.
• The expansion of Islam into diverse cultures, such as the Byzantines and Persians, introduced new challenges for Islamic law.
• Distance from Medina, the Islamic capital, necessitated innovative Islamic solutions by jurists on the periphery.
• During the Umayyad dynasty, qiyas was misused by rulers, but the Abbasids later defined it more strictly for consistent application.
• The fundamental principle of qiyas is that every legal injunction aims for a beneficial and welfare-satisfying objective.
• If the cause of an injunction can be derived from primary sources, analogical deduction can be applied to similar cases.
• For instance, wine is prohibited in Islam due to its intoxicating properties, leading to the conclusion that all intoxicants are forbidden.
• Abu Hanifa introduced istihsan, or juristic preference, as a form of analogical deduction (qiyas).
• Istihsan involves seeking ease and convenience, adopting tolerance and moderation, and overriding analogical deduction when necessary.
• Inspired by the principle of conscience, istihsan is a last resort when widely accepted sources do not apply, favoring rulings that alleviate hardship and provide ease.
• The doctrine is justified by the Koranic verse: "Allah desires you ease and good, not hardship."
• While primarily associated with Abu Hanifa and his followers, Malik and his students also utilized istihsan to some extent.
• Istihsan was a subject of extensive debate, with critics arguing that it often deviates from primary sources.

 Custom as a Source of Muslim Law 

Hindus in 1868 believed that a valid custom overrides sacred law. The Privy Council supported this in Muslim law for converts wanting to retain personal laws. However, the Orthodox rejected this, leading to the Shariat Act of 1937. Despite all schools acknowledging the four ancient sources, they do not dismiss the role of customs. The Prophet also upheld ancient Arabian customs as long as they did not conflict with Muslim law.

 Role of Customs in Muslim Law 

• Customs are considered supplementary to Muslim law.
• In the early period, when a Code of Islamic law was not established, the Prophet and his companions relied on customs for certain matters, such as:
• Remuneration of foster mothers
• Compensation for civil wrongs

 Conditions for a Valid Custom 

• Islamic Jurists have laid down five conditions for a custom to be considered valid:
•  Regular Occurrence:  The custom must be of regular occurrence, continuous, and certain.
•  Universality:  The custom should be universal.
•  Reasonableness:  The custom should be reasonable.
•  Compliance with Islamic Texts:  The custom should not contradict any express text of the Quran or the Sunnah.
•  Ancientness Not Required:  The custom need not be ancient and immemorial.

 Modern Sources of Muslim Law 

 1. Equity, Justice, and Conscience 

•  Istihsan:  A principle in the Hanafi school that allows jurists to prioritize public good over strict analogical reasoning (Qiyas).
•  Masalih al-Mursala:  A concept in the Maliki school that enables jurists to derive laws based on public welfare.
• Although the principle of equity was developed by the British, some schools of Muslim law have applied it in their jurisprudence.
• British courts often used this principle of equity in cases related to Muslim law.

 2. Precedent 

• Precedent is not a formal part of Muslim law.
• Decisions made by Kazis do not constitute precedents in the same way as in English law.
• The closest concept to precedent in Muslim law is  'Fatwas'  , which hold moral and legal authority but are not binding on Kazis.
• Fatwas were pronounced by scholars (Muftis), and Kazis were not obligated to follow them.
•  Fatwa-al-alamgiriyya  is a famous collection of Fatwas.
• Over time, various traditions related to gifts and Wakf have been modified to protect women's rights, resulting in a blend of precedent in Muslim law.
• The doctrine of  Stare Decisis  has become a part of Muslim law.

 3. Legislation 

• The Hanbali school acknowledged certain forms of legislation, such as  Nizam  (Ordinance/Decree), Farmans, and dastarul amals, but these were not related to personal laws.
• The British did not interfere in personal laws, which hindered the development of Muslim law due to the lack of proper legislation.
• Notable legislations affecting Muslim law include the  Shariat Act of 1937  and the  Muslim Wakf Validating Act of 1913  .
• The  Dissolution of Muslim Marriage Act of 1939  introduced significant changes in Muslim law by granting Muslim wives the right to judicial divorce under specific grounds.
• After independence, in 1963, a proposal to reform Muslim personal law was presented in Parliament, supported by progressive Muslims but opposed by orthodox factions, resulting in minimal improvements in this area.

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