Sources of Sharia
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Various sources of Islamic Laws are used by
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.
Primary sources
Qur’an
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
The verses of the Qur'an are categorized into three fields: "science of speculative theology", "
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
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.
Much of the sunnah is recorded in the
To establish the authenticity of a particular Hadith or report, it had to be checked by following the chain of transmission (
Using this criterion, Hadith are classified into three categories:[7]
- Undubitable (mutawatir), 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[clarification needed], 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
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 jurisprudence |
Formation of ijma' | Rationale | ||||
---|---|---|---|---|---|---|
Hanafi
|
through public agreement of Islamic jurists | the jurists are experts on legal matters | ||||
Shafi'i
|
through agreement of the entire community and public at large | the people cannot agree on anything erroneous | ||||
Maliki
|
through agreement amongst the residents of Medina, the first Islamic capital | Islamic tradition says "Medina expels bad people like the furnace expels impurities from iron" | ||||
Hanbali
|
through agreement and practice of Muhammad's Companions
|
they were the most knowledgeable on religious matters and rightly guided | ||||
Usuli | only the consensus of the ulama of the same period as the Prophet or Shia Imams is binding. | consensus is not genuinely binding in its own right, rather it is binding in as much as it is a 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
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."
The success and expansion of Islam brought it into contact with different cultures, societies and traditions, such as those of
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,
The
The knowledge of ours is an opinion, it is the best we have been able to achieve. He who is able to arrive at different conclusions is entitled to his own opinion as we are entitled to our own.
The
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
Public interest
Malik developed a tertiary source called
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
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 was Ibn Rus̲h̲d (Averroes d. 595/1198).[29]
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
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 source. Later, al-Sarak̲h̲sī (d. 483/1090) 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
Notes
- ^ a b c d e f g h Mutahhari, Morteza. "Jurisprudence and its Principles". Tahrike Tarsile Qur'an. Retrieved 26 July 2008.
- ^ "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.
- ^ Motahhari, Morteza. "The Role of Ijtihad in Legislation". Al-Tawhid. Retrieved 26 July 2008.
- ^ Momen (1985), pp. 185–187 and 223–234
- ^ Momen (1985), p. 188
- ^ a b Nomani and Rahnema (1994), pp. 3–4
- ^ a b c d Nomani and Rahnema (1994), pp. 4–7
- ^ Quran 59:7
- ^ Qadri (1986), p. 191
- ^ "Hadith", Encyclopedia of Islam.
- ^ Berg (2000) p. 8
- ^ See:
- Robinson (2003) pp. 69–70;
- Lucas (2004) p. 15
- ^ Makdisi, John (1985). "Legal Logic and Equity in Islamic Law", The American Journal of Comparative Law, 33 (1): 63–92
- ^ a b Mahmasani, S. Falsafe-e Ghanoongozari dar Eslam. Tehran: Amir Kabir. p. 143
- ^ Verses Quran 2:143, Quran 3:103, Quran 3:110, Quran 4:59, Quran 4:115 and Quran 9:119 are presented by Mahmasani.
- ^ Muslehuddin, M. Philosophy of Islamic Law and the Orientalists. New Delhi: Taj printers, 1986. p. 146
- ^ a b c Encyclopædia Britannica, Ijma.
- ^ "Id̲j̲māʿ", Encyclopaedia of Islam
- ^ a b Nomani and Rahnema (1994), pp. 7–9
- ^ a b c d e f Nomani and Rahnema (1994), pp. 9–12
- ^ Mahmasani, S. Falsafe-e Ghanoongozari dar Eslam. Tehran: Amir Kabir. p. 140
- ^ Bernard G. Weiss, The Search for God's Law: Islamic Jurisprudence in the Writings of Sayf al-Din al-Amidi, p. 633. Salt Lake City: University of Utah Press, 1992.
- ^ a b c d e f Nomani and Rahnema (1994), pp. 13–15
- ^ a b Encyclopædia Britannica, Istihsan
- ^ a b c Hasan (2004), pp. 157–160
- ^ Hallaq, "Considerations on the Function and Character of Sunnī Legal Theory".
- ^ Hodkinson, Keith. Muslim Family Law: A Sourcebook. India: Routledge, 1984.
- ^ a b Nomani and Rahnema (1994), pp. 15–16
- ^ a b c Ijtihad, Encyclopaedia of Islam
- ^ ʻAlwānī (1973), p. 9
- ^ a b "Urf", Encyclopaedia of Islam
- ^ a b Hasan (2004), pp. 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.
- 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. )
- Libson, G.; Stewart, F.H. "ʿUrf." 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. 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