Sources Of Islamic Law Essay Examples

Intellectual Background:
Islamic Sources of Information and their Development into Islamic Law

by Muslim Women's League
September 1995

Diversity of Thought

Diversity of opinion and practice has existed since the beginning of time. Even Prophet Muhammad was thought to have said "difference of opinion among my community is a sign of the bounty of God."1 (Could not find firsthand reference!) The goal of this chapter is to introduce some of the prevailing concepts of Islamic thought and to try to survey the various opinions and disciplines that have shaped the practice of Islam today: traditionalists versus rationalists; scholars who chose only a handful of ahadith as religiously binding, versus those who considered nearly all ahadith as so; those who interpreted the Quran with literalism and those who saw its broad fundamentals as eternal; those who believed in imitating the practice of Islam during the Prophet's lifetime versus those whose application of Islam took into consideration the different social and political climates; those who claimed the "doors" of ijtihad (independent judgment) were to be closed, and those who believed they should remain open to prevent stagnation of thought.

Although the above debates have existed for centuries, it is unfortunate that despite great achievements in human and technological advances, many progressive Muslim thinkers today are discounted, alienated and even threatened because they fail to subscribe to the traditional party-line or the politics du jour. Today's stagnation in thought is happening despite Islam's rich past where we find differing, even polarized views, from jurists in high stature. It is known that the four well-known Muslim schools of thought differed to no small degree in their interpretations. Many schools grew out of one another because students differed from their teachers and eventually formed opposing schools of thought. (Shafi'i was a student of Malik's and Ibn Hanbal was thought to be a student of Shafi'i's.)

One can’t wonder but ask, if Islam was explicit on many issues, then why hasn’t conformity among Islamic jurists continued through the ages? It could be argued that it was the legitimate exercise of independent judgment, or ijtihad, when there was no explicit guidance from divine revelation, that resulted in differences between the schools of thought. A 16th century Muslim scholar echoes the sentiments of many jurists when he preferred to speak of differences in juristic opinions in terms of "latitude of interpretation" or tawsiya, as opposed to "divergence" or ikhtilaf. Four hundred years later, modern scholar N.J. Coulson explains it this way: "God permitted a wide scope in the elaboration and interpretation of his basic precepts, and variations in doctrine can all be explained in terms of one standard, that of the comparative severity or leniency of interpretation."2 Walking on that fine tightrope of interpretation has and always will be a challenge to Muslims across the globe.

This chapter introduces some of the sources, debates and opinions that have affected our way of thinking and the "latitude of interpretation" as one scholar put it. The study of women's rights in Islam would be incomplete without looking into how Muslims of yesteryear interpreted Islam and how historical and political influences have affected the beliefs and practices of Muslims today. In no way does this chapter cover all issues in depth or become a substitute for a devoted study on comparative Islamic thought. We are merely offering some food for thought and suggesting that one does not take for granted that the most prevailing opinions are indeed the only Islamic and correct options.

Sources of Islamic Law

In the eighth century, a difference in legal approach arose amongst Islamic thinkers in two prevailing schools of legal thought. The traditionalists (ahl al-hadith) relied solely on the Quran and the sunna (traditions) of the Prophet as the only valid sources for jurisprudence, such as the prevailing thought emanating from Medina. The non-traditional approach (ahl al-ra'y) relied on the free use of reasoning and opinion in the absence of reliable ahadith, which was heralded in Iraq. The reason for the difference in technique is that in Medina, there was an abundance of reliable ahadith that scholars could depend on for forming legislation, since the Prophet lived the last ten years of his life during a period of legislation in the young Muslim community. In Iraq, the sources that were available were not as reliable as in Medina and so the jurists had to turn to analogy because of their circumstances. Therefore, a hadith may have been accepted by Malik (from Medina) and not by Abu Hanifa (from Iraq) who had to use analogy in the absence of reliable hadith. A challenge that jurists had to reconcile was which of the Prophet’s actions and decisions were religiously binding and which were merely a function of personal discretion of the Prophet? In general, ahl al-hadith eventually lent legislative significance to much of the Prophet’s decisions, whereas other schools tended to distinguish between the various roles that the Prophet played in his life.

Muhammad ibn Idris al-Shafi'i (d. 819) was concerned about the variety of doctrine and sought to limit the sources of law and establish a common methodology for all schools of Islamic law.3 His efforts resulted in the systemization of usul al-fiqh, the following four sources of Islamic law:

  1. the Quran;
  2. the sunna or tradition of the Prophet;
  3. qiyas or analogies;
  4. ijma or unanimous agreement.

Throughout history these sources were used in descending order by Muslim jurists in determining the legality of an issue. If the legality was not based on an explicit command in the Quran, then the jurists turned to look for explicit commands in the hadith, and so on. Unfortunately, as we shall discover, not all aspects of the methodology were unanimously agreed upon; the Quran could be interpreted differently, some traditions of the Prophet were questioned for their authenticity and to what extent they were religiously imperative, the use of analogies was greatly debated and there was little unanimous agreement among scholars in Islamic history about inexplicit issues.

The Qur'an

Here is a plain statement to mankind, a guidance and instruction to those who fear God (3:138) God revealed the Quran in Arabic through the Angel Gabriel to Prophet Muhammad over a period of 23 years. For ten years in Mecca and 13 years in Medina the Quran taught the oneness of God and guided believers to the path of morality and justice. As the Muslim community grew and its needs became more complex, the Quran addressed those issues and tried to replace old tribal customs with more just reforms. For example, the Quran outlawed prevalent customs such as idolatry, gambling, liquor, promiscuity, unbridled polygamy, usury, etc. It also improved the status of women by proclaiming women's equality to men and providing women with decreed rights in the areas of marriage, divorce and inheritance.

The shari'a, foundations of Islamic law, are derived from verses from the Quran. "The bulk of Quranic matter consists mainly of broad, general moral directives as to what the aims and aspirations of Muslims should be, the 'ought' of the Islamic religious ethic." 4 Because many of the directives in the Quran are so broad, interpretation takes on such a significant role. There have been so many different interpretations of the Quran, claims widely read and revered Islamic thinker Abul A'ala Maududi, that "there is hardly to be found any command with an agreed interpretation." 5 And that doesn't just refer to modern scholars, but also includes the founding schools of thought and even the companions of the Prophet, who "did not all agree in every detail in regard to Commands and Prohibitions."6 Nevertheless, the authenticity of the Quran has never been questioned by any Muslim scholar or institution.

Sunna of the Prophet

You have indeed in the Apostle of God a beautiful pattern of conduct for anyone whose hope is in God and the Final Day (33:21). As the last messenger of God, Muhammad (570-632) brought the Quranic teachings to life through his interpretation and implementation as leader of the Muslim community. The sunna of the Prophet generally means "tradition" and includes the following three categories: sayings of the Prophet; his deeds; and his silent or tacit approval of certain acts which he had knowledge of. The record of the Prophet's words and deeds were recorded in narrative ahadith, reports that were transmitted before finally being compiled in authoritative collections decades after the death of the Prophet. (For more discussion about hadith, see next section, "The Role of Hadith.") In the first centuries of Islam, "it should finally be stressed that there was no suggestion, at this stage, that the Prophet was other than a human interpreter of the divine revelation; his authority lay in the fact that he was the closest, in time and spirit, to the Quran and as such was the ultimate starting-point of the Islamic sunna."7

Qiyas or analogy

The third source of law, qiyas, is reasoning by analogy. In order to apply qiyas to similar cases, the reason or cause of the Islamic rule must be clear. For example, because the Quran clearly explains the reason that consumption of alcohol is prohibited (because it makes the user lose control of his actions), an analogy can be drawn to drugs which induce the same affect. But because the Quran does not specifically state the reason why pork is prohibited, Muslims cannot justify banning another meat product with a similar cholesterol level, etc. The use of analogies greatly varied among scholars; for example, Spain's Ibn Hazm (10th century) who was formidable proponent of the Zahiri school, rejected the use of qiyas, whereas Imam Abu Hanifa of the Hanafi school (8th century) applied them extensively.

Ijma or unanimous agreement

Ijma constitutes the unanimous agreement of a group of jurists of a particular age on a specific issue and constitutes the fourth and final source of law in Shafi'i's methodology. If questions arose about a Quranic interpretation or an issue where no there no guidance from either the Quran or sunna, jurists applied their own reasoning (ijtihad) to come to an interpretation. Through time, "one interpretation would be accepted by more and more doctors of law. Looking back in time at the evolved consensus of the scholars, it could be concluded that an ijma of scholars had been reached on this issue." 8 Unfortunately, unanimous agreement rarely happened among intellectual elite and since there were always diverse opinions, one could always find several scholars of the day who concurred on an issue. Also, the definition of ijma and which ijma would be considered valid was a point of contention, because ijma is not simply the consensus of all past jurists. Besides, using the concept of ijma poses the problem of having to look to the past to solve the problems of the future, and scholars of yesteryear didn't wrestle the same issues that are challenging Muslims today.

What is halal and haram?

The concepts of halal, permittable, and haram, prohibited, play a major role in deciding the legality of acts. Scholars have created classifications of acts that span the difference between halal and haram, such as makruh, which is an act that is not recommended, but clearly not prohibited. No matter the classification, scholars agreed that if a certain action was not categorically prohibited, then it was permissible.

Historical background on hadith

Difference between sunna and hadith

"The majority of the contents of the hadith corpus is, in fact, nothing but the Sunna-Ijtihad of the first generations of Muslims, an ijtihad which had its source in individual opinion but which in course of time and after tremendous struggles and conflicts against heresies and extreme sectarian opinion received the sanction of Ijma, i.e. the adherence of the majority of the Community. In other words, the earlier living Sunnah was reflected in the mirror of the Hadith with the necessary addition of chains of narrators. There is, however, one major difference: whereas Sunnah was largely and primarily a practical phenomenon, geared as it was to behavioral norms, Hadith became the vehicle not only of legal norms abut of religious beliefs and principles as well." (Rahman, p. 45)

The hadith constitute the recording in writing everything that Prophet Muhammad was to have said, such as his opinions or decisions on issues, his responses to Muslims’ questions or requests, as well as his silent or tacit approval of acts he had knowledge of. "The hadith sayings are in fact a veritable panorama of daily life in the seventh century, a vivid panorama, extremely varied because there are various versions of the same event. Finally, one also finds side by side subjects as different as 'how to perform one's ablutions,' 'how to behave on one's wedding night,' and 'what is to be done in case of civil war.'" (Mernissi, 35)

Just as during his life, Muslims could go the Prophet for answers; after his death, they looked to the hadith for Prophetic guidance, a means of searching out what was or not acceptable in areas where the Quran had not left specific rulings. However, many scholars believe that ahadith were not compiled in authoritative collections until the middle of the ninth century, "by which time a great mass of diverse ahadith reflected the variety of legal opinion developed over the past two centuries of juristic reasoning in the legal schools. Recognition that the hadith literature included many fabrications led to a concerted effort to distinguish more clearly authentic traditions." (Esposito, 6)

The sunna of the Prophet differs from the hadith in that

The development of the science of hadith

In order to verify the authenticity of hadith narrations, painstaking attempts were made by Muslim scholars to apply a science of hadith criticism. Judging the trustworthiness of the narrator was the first criteria; for example, his or her having a good memory and a sound reputation in the community, etc. Based on the chain of narrators (isnad), ahadith were classified by the following categories:

  • Mutawatir – "continuous" chain consists of a large group of transmitters in each generation, sufficient in and of itself to dispel suspicion of fabrication.
  • Mashhur – "well-known" constitutes a widely disseminated hadith with individual narrators that could be traced back to the time of the Prophet.
  • Ahad – "isolated" refers to ahadith where the last link (sanad) in the chain was only one authority.
  • Morsil – "not connected" refers to ahadith where the last link in the chain is unnamed.

The second criteria was judging the hadith for its content or matn. Did the hadith contradict the Quran or another verified tradition or the consensus of the community? Did it have the "light" of the Prophet in them? Were they consistent with his style and speech? After the ahadith were judged for their chain and content, they were labeled to their degree of strength or authenticity: sahih (authentic), hasan (good), da-if (weak). Of the six major collections of the hadith, that of Bukhari (d. 870) and Muslim (d. 875) have enjoyed an especially high reputation among Muslim scholars. Despite this, questions regarding the authenticity of some ahadith still remain.

Talk more about what sahih really means? It is not mutawatir, etc.

Collection by Bukhari

So revered is Bukhari’s work, it "is generally considered by [a large number of ]the Muslims as an authority second only to the Qur'an." (Hadith lit, p. 53) Bukhari stated that he collected 600,000 ahadith and confirmed around 7,000 (including duplications) as authentic. Although later scholars agree that Bukhari had stringent requirements to verify the chain of narration, his concentration was to verify the chain itself, and not the subject matter. "Al-Bukhari confines his criticism to the narrators of traditions, and their reliability, and pays little attention to the probability or possibility of the truth of the actual material reported by them. In estimating the reliability of the narrators, his judgment has in certain cases been erroneous, and the Muslim traditionists have not failed to point this out." Quoted are scholars such as al-Daraqutni, Abu Masud of Damascus and Abu Ali al-Ghassani who have pointed out weak traditions or those that do not technically fulfill the requirements. "Despite this, all the Muslim traditionists, including those who have criticized the Sahih, have paid unanimous tribute to the general accuracy, scrupulous care, and exactitude of the book's author." (Hadith Literature, p. 58)

Human influences in hadith collection

Scholars have unsatisfactorily answered the legitimate concerns everyday Muslims have about legitimate human factors in hadith collection. The possibility of error, bias or evil intent is often refuted by traditionalists who believe that the science of hadith had been perfected to reject the many fabrications and that the sincerity and piety of the early narrators and compilers outshine the "rubbish heap of false traditions." (Hadith Lit, p. 32) But one cannot help but ask how human vices, political agendas and simple imperfections could not have played some role in the collection of ahadith. Fazlur Rahman in Islamic Methodology in History sorts through and explains how political and social factors in early Islamic history could not be easily isolated from the outproduct, namely the hadith and ultimately legal decisions. "The majority of the contents of the Hadith corpus, is, in fact, nothing but the Sunna-Ijtihad of the first generations of Muslims." (Rahman, p. 45)

Many practical issues dealing with the collection and authenticity of hadith were formidable challenges affecting their integrity. For example, it was difficult to question a reporter of hadith, as a legal witness could, on the ground that his evidence was biased (Coulson, 63); some ahadith (such as predictive ones about political troubles in Bukhari and Muslim) were labeled authentic because they had excellent isnads (chains), but could not be accepted "if we are historically correct," supporting the theory that verification of isnads is not a foolproof guarantee of authenticity (Fazlur Rahman, Islamic Methodology in History, Karachi: Central Institute of Islamic Research, 1965, p. 72); at one time there were hundreds of thousands of ahadith to sift through, an enormous amount against the human odds that could not have perfectly sifted though all the fabricated ones; "selective" memory, mishearing, making bona fide mistakes in relaying a tradition or other human factors are also not often reconciled with the enormous weight given to ahadith.

A good example of how a modern writer explains how this human factor comes into play with ahadith on women is Moroccan feminist, Fatima Mernissi. In a section of The Veil and the Male Elite, she delves into the biographical background, dissenting biographies and refuting opinions on several ahadith and their narrators to prove that in many instances, sexist ahadith have been, deliberately or not, attributed to companions' narrations of the Prophet. Analyses of these ahadith show inconsistencies, historical impossibilities and clear bias, leading her to believe that many may have in fact been fabricated, labeled as authentic and used to further certain political agendas. Here is a shortened exercise in questioning a questionable hadith:

"Those who entrust their affairs to a woman will never know prosperity" is reported in Bukhari. The "authenticity" of this hadith is shaded by the following facts Mernissi's research indicates:

  • This hadith is narrated by a slave who converted to Islam, Abu Bakra, (not to be confused with the Caliph Abu Bakr) whose genealogy was difficult to trace, which is considered an important part of a hadith narrator's biography. More importantly, he recalled this hadith apparently decades after the death of the Prophet, coincidentally at the time that Aisha’s army was defeated by Ali's forces at the Battle of the Camel, the first civil war.
  • In Bukhari's chapter about the first Muslim civil war, "al-Fitna", where all other ahadith on the same subject were assembled, Abu Bakra's narration is a solitary hadith justifying political neutrality by the gender of one of the leaders, Aisha.
  • A biography of Abu Bakra claims that he was one of the four witnesses who was flogged for slander by Omar ibn-al-Khattab. Abu Bakra falsely accused a well-known companion of adultery.
  • "Abu Bakra remembered other hadith just as providential at critical moments." For example, after the assassination of Ali, Mu’awiya thought he could have legitimate claim to the caliphate if only Hassan, Ali's son and Muhammad's grandson, would renounce in writing his rights to that claim. At this historic moment, Abu Bakra recalled a hadith that Hassan will be the man of reconciliation between the two divisions of the Muslim community, even though Hassan would have only been a baby when the Prophet was supposed to have predicted that. (Mernissi, 49-61)

Many may wonder why Mernissi so zealously questions the general use of this hadith when it can be easily be explained by its circumstance: The Prophet responded to news of the death of a Persian king who was to be replaced by his daughter. Therefore, the Prophet’s response was not meant as a general rule of an Islamic teaching revealed from God, but a personal response to a political incident. To Mernissi, the explanation to this hadith doesn’t completely explain why if the hadith was meant as a general rule--as Abu Bakra may have intended it--wasn’t it relayed sooner? And why did Abu Bakra wait decades later to suddenly introduce it? If it was the Prophet’s personal response to a specific incident, why was it relayed in the context of Aisha’s leadership? Even though it was classified as a "sahih" hadith by Bukhari, Mernissi says that it was still hotly debated by many scholars. "Al-Tabari was one of those religious authorities who took a position against it, not finding it a sufficient basis for depriving women of their power of decision making and for justifying their exclusion from politics." (Mernissi, p. 61)

Mernissi also looks at Abu Hurayrah, the most prolific narrator (over 5,300 ahadith) in the three years he knew the Prophet. (Siddiqi, Hadith Literature, p. 18). Although Abu Hurayrah narrates twice as many ahadith as the next prolific narrator, rarely is his huge number of narrations questioned. One author simply states that "the fact that he narrated a uniquely large number of traditions itself did make inventing ahadith in is name an attractive proposition." (Siddique, p. 20) What Mernissi calls to task is several ahadith that Abu Hurayrah may have wrongly narrated, mostly dealing with sex, purification and other female issues. She also mentions confrontations between Aisha and Abu Hurayrah, and a story that some of the companions caught Abu Hurayrah reporting a hadith he later confessed was not heard directly from the Prophet. (Mernissi, p. 73) It appears that Mernissi’s intent is to bring out all these incidents, inconsistencies and human agendas out from the woodwork and into our understanding of the anatomy of ahadith today.

Many scholars on hadith have told us how scrupulous narrators were in remembering hadith correctly, yet on the other hand, Aisha, for example was known to have refuted ahadith of some companions. How could she have been touted for her refutations if all the companions are touted for their scrupulous memory? She wouldn't have had anything to refute if no one's memory failed or there was no misunderstanding. For example, when Ibn Umar related that the Prophet had said that the dead are punished in their graves on account of the wailing of their relatives, Aisha pointed out that the Prophet had actually said that while the dead are punished in their graves for their sins, their relatives wept for them. (Siddiqi, p. 21)

There is no doubt that the companions of the Prophet and hadith scholars such as Bukhari were highly scrupulous and righteous individuals, but to admit to their human imperfections is not by any means the same as to admit that they willingly and carelessly recorded traditions. In the minds of many Muslims, there is no middle ground. The gray area is the most difficult to deal with because we have to exert effort, investigate for ourselves, question and probe, as opposed to being given a handbook of exact definitions, beliefs and sources. Understanding the hadith is not as simple as opening up Sahih al-Bukhari and believing every word in it as if it were the Quran. Unfortunately, this is the understanding of many Muslims who fear that having a gray area dilutes the true message. What Mernissi tries to do is to boldly examine this gray area and ask questions few have delved before. In many cases, she brings together opinions from past scholars in hopes of shedding light on the taboo subject of questioning the origin and meaning of questionable ahadith.

The role of Ahadith in first two centuries of Islam

Many scholars have agreed that the fabrication of hadith was a result of political and social tensions and dissensions erupting immediately after the death of the Prophet and were carried into modern times. Here is how biographer Muhammad Haykal explains the phenomenon:

...after Muhammad's death the Muslims differed, and they fabricated thousands of ahadith and reports to support their various causes. From the day Abu Lu'lu'ah, the servant of al Mughirah, killed Umar ibn al Khattab and Uthman ibn Affan assumed the caliphate, the old pre-Islamic enmity of Banu Hashim and Banu Umayyah reappeared. When, upon the murder of Uthman, civil war broke out between the Muslims, Aisha fought against Ali and Ali's supporters consolidated themselves into a party, the fabrication of ahadith spread to the point where Ali ibn Abu Talib himself had to reject the practice and warn against it. He reportedly said: 'We have no book and no writing to read to you except the Quran and this sheet which I have received from the Prophet of God in which he specified the duties prescribed by charity.' Apparently, this exhortation did not stop the hadith narrators from fabricating their stories either in support of a cause they advocated, or of a virtue or practice to which they exhorted the Muslims and which they thought would have more appeal if vested with prophetic authority. (Haykal, lxxxiii)

By the end of the second century of Islam, it was believed that "the fabricated ahadith numbered in the thousands and hundreds of thousands and contained an unimaginable amount of contradiction and variety." (Haykal, lxxxiv) At the same time, Muslim scholars started forming coherent systems of thought and legal positions. The different schools of thought that transpired echoed various opinions and interpretations and many of their differences concentrated on the treatment of the ahadith: Abu Hanafi was well aware of the fabrication of ahadith, and had accepted a handful as being authentic and binding. The other extreme is Ibn Hanbal who in his Musnad work of ahadith, collected all traditions of the Prophet "which, by his criteria, were likely to prove genuine if put to the test, and could therefore serve as a provisional basis for argument....But he never claimed that all its contents were genuine or reliable." (Hadith Lit, p. 49) His school accepted nearly all ahadith as binding. Malik's school of thought was seen as the Medina school of interpretation, and believed that the Prophet had been the best person qualified to interpret the Quran, yet Malik rejected some of the Prophet’s rulings on ground that they were outweighed by other juristic considerations. (Coulson, 56)

How non-specialists can judge the authenticity of ahadith

It is difficult to comprehend how human narrators and a man-made science of hadith compilation could have withstood any outside political or social biases. It is also difficult to explain how the most knowledgeable jurists in the different schools of thought disagreed on their approaches to hadith. And if indeed the hadith has found criticism in the most reliable of its authoritative compilations, where does this leave everyday Muslims with regard to the second most important source on Islam? How do we judge the reliability of ahadith for ourselves? Certainly there were great efforts put into the science of hadith by early scholars. Since then, however, recent scholars have let down the Muslim community by failing to continue to develop and re-examine the science.

The discrepancies, inconsistencies and frustration without an updated science has left many Muslim community leaders at a loss. For example, Dr. Maher Hathout, spokesperson for the Islamic Center of Southern California and an active Muslim leader in the United States, says he was compelled to put together "a suggested prescription to the 'non-specialist' Muslim reader, particularly in America." In order to evaluate problematic hadith references, Dr. Hathout recommends the following guidelines to students in his Islamic studies program:

  1. First of all, he says ahadith must be distinguished from the Quran in the following ways:
    Ahadith cannot be recited in acts of worship. Secondly, they were not meant to be compiled like the Quran which was memorized and written down on various items, such as leather and bone and then finally compiled in one authoritative book during Othman's leadership (mid-seventh century). The Prophet himself has been reported to discourage his companions from writing down his words, lest they be confused with the Quran. This report is in conflict with weaker ahadith that claim that the Prophet granted permission to write down his words. (Hadith lit., p. 25) Lastly, they were not divinely preserved, as opposed to the Quran in which it states that God will preserve the Quran; therefore, they can be tampered with, as we have seen in several examples of the hadith.
  2. Ahadith should not contradict the Quran. Ahadith should be categorized as either those elaborating on revelations from God or those of personal opinions of the Prophet. It is agreed upon by many scholars, including Muhammed al-Ghazzali and Sheikh Mahmoud Shaltoot of al-Azhar that anything the Prophet said as a judge, ruler, medical person, his personal preferences and all other issues relating to natural human practices (mu'amalat), are not binding orders. If authentic, however, they may be taken as recommendations. Binding are those authentic sayings of the Prophet that refer to religious practice (ibadat), that elucidate the Quran, or the Prophet specifically mentioned he received as orders from God. 
  3. Authentic ahadith should use specific wording such as "God prohibits" in order to qualify to be binding in making a prohibition. This is a well known teaching in usul-al-fiqh. (For more information, readers are encouraged to read works by al-Shatibi, Ibn Hazm or Khallaf) Saying that it just isn't nice to do something, or that it's not nice to recommended, is not enough on its own to make the act prohibitive.
  4. Ahadith should be taken in their historical context. For example, there are some ahadith where the Prophet uses the medical knowledge known during the 7th century, such as curing a fever by allowing blood to let from the body. (Get hadith reference) This was the extent of his knowledge and the knowledge of medicine for the Arabs at that time; the hadith should be judged against the medical information we have available to us today. Again, such a hadith should be judge by the capacity of the Prophet at the time--is it his personal knowledge or a revelation from God?
  5. Ahadith that are mutawatir (relayed by a large group) are considered authentic, as opposed to ahadith that are based on individual chains of narration. Unfortunately, only literally a handful of mutawatir ahadith actually exist in the published hadith collections.
  6. Ahadith on the same subject should be consistent. It is unlikely that a dissenting hadith is authentic if the majority of others on the same issue claim something contradictory.

Ijtihad

During the Prophet's life the Muslim community respected the Prophet's authority as their spiritual guide, community leader as well as a trusted and respected individual. He intervened in cases of controversy and his counsel was very much solicited; therefore, many of the Muslims took it for granted that the Prophet was always there in case an issue needing clarification. However, this did not negate the benefits of using ijtihad, or independent judgment, and we have examples of the Prophet encouraging the believers to apply the principles of ijtihad to their everyday lives. For example, it is reported that when the Prophet appointed Mo'adh ibn Jabal governor of Yemen, he asked him what he would do in case an issue arises to which he is uncertain. Mo'adh said he would first refer to the Quran and then to the teachings of Muhammad. The Prophet then asked him what he would do if there is no clear answer from these sources. Mo'adh answered, to the satisfaction of the Prophet, that he would do the best he could and use his judgment. ("Ijtihad of the Prophet's Companions," Light, January-March 92, p. 4, Hasan ud-Din Hashmi) In another example to show that independent judgment was encouraged, the Prophet had ordered Muslims in a mission to not pray Asr (midday prayer) except in Qurayza, their destination. When the sun was about to set, some said that the Prophet meant for them to hurry up so they arrive in Kuryza before the sun set, but if they are running late, they should pray on the road. Others took the Prophet's words literally and refused to pray until they reached Qurayza after the sun set. Later when they met with the Prophet they asked him which interpretation was correct, and he agreed with both. (Need reference)

After the death of the Prophet, it was seen that "from the readiness of the Caliphs Abu Bakr and Umar to take advice it is evident that the right of interpreting the Quranic regulations was not the privilege of any special official body but could be exercised by anyone whose piety or social conscience dictated such a course." (Coulson, 25) To prevent individuals from practicing ijtihad haphazardly, al-Shafi'i developed a methodology for using ijtihad in his book, Usul al-fiqh. Since then, the role of ijtihad has not been in the hands of the laymen, but in a select few who occupy a special role in Islamic law. Today in many Muslim countries, Islamic decisions ranging from personal to political are made in the form of fatwas, or religious decisions, where Islamic scholars render a decision on the morality or legality of an issue brought to them.

Medieval law

During the Mongol invasion, the Muslim world lost many of its cultural and intellectual centers, including libraries, mosques and universities, not to mention the lives of hundreds of thousands of Muslims. "The response of the Muslim community amidst this collapse was a withdrawal into a conservatism that resisted further change. Unfortunately, many of the practices of the time, which had resulted from acculturation of foreign customs and were contrary to Quranic values, were already associated with religion, and these, too, were preserved. This reaction, coupled with the 'closing of the door of ijtihad' in law, resulted in the relative stagnation of the Muslim community and its jurisprudence." (Esposito, p. 11)

By the early tenth century, mainstream Muslim jurisprudence formally recognized the finality of formulated legal opinion in the recognition of the four major schools of law, Hanafi, Maliki, Shafi'i and Hanbali. It was believed that no one could have attained the same level of knowledge as the early ulama or scholars, therefore their formulations were final and binding and that the gates of ijtihad for future generations were "closed." The consequence of this belief, writes Leila Ahmed is that "the vision of society, the understanding of the nature of justice, and the view of the proper relationship that should pertain between men and women that were developed by the men of that age have been consecrated as representing the ultimate and infallible articulation of the Islamic notion of justice and have, ever since, been set in stone." (Ahmed, p. 90)

John Esposito in Women in Muslim Family Law also echoes a similar opinion: "A mechanism created to arrive at authoritative interpretations took on the aura of infallibility. Thus, the substantive law (fiqh) found in the manuals of the law schools, much of which was conditioned by historical and social circumstances as well as the use of reason, came to be 'enshrined' as a detailed immutable blueprint for society." (Esposito. p. 103)

In fact, Fazlur Rahman explains how the phenomenal growth of the early Muslim civilization was short-lived "because the content of this structure was invested with a halo of sacredness and unchangeability since it came to be looked upon as uniquely deducible from the Quran and the Prophetic Sunnah…[T]he actual content of the interpretation of the Quran and the Prophetic Sunnah, the content which we described in the previous chapters as the ‘living sunnah’, ceased to be the living sunnah, i.e., an on-going process and came to be regarded as the unique carnation of the Will of God....[T]he genesis of some of the important political, theological and moral doctrines ...which had originated in the ‘living sunnah’ as a product of Islamic history acting on the Quran and the Prophetic Sunnah, were transformed, through the medium of the Hadith, into immutable articles of Faith." (Rahman, p. 87)

Rahman sorts through and explains how political and social factors in early Islamic history could not be easily isolated from the outproduct, namely the hadith and ultimately legal decisions and how hadith, sunna, ijtihad and ijma are all intertwined:

"The majority of the contents of the Hadith corpus, is, in fact, nothing but the Sunna-Ijtihad of the first generations of Muslims, an ijtihad which had its source in individual opinion but which in course of time and after tremendous struggles and conflicts against heresies and extreme sectarian opinion received the sanction of Ijma, i.e., the adherence of the majority of the Community. In other words, the earlier living Sunnah was reflected in the mirror of the Hadith with the necessary addition of chains of narrators. There is, however, one major difference: whereas Sunnah was largely and primarily a practical phenomenon, geared as it was to behavior norms, Hadith became the vehicle not only of legal norms but of religious beliefs and principles as well." (Rahman, p. 45)

Cultural Dimensions in Islamic Practice

Although the message in the Quran is timeless in its eternal meaning for the betterment of humankind and one's devotion to God, one cannot put aside the fact that it was indeed revealed to a specific culture and at a specific time in history. Abul A'ala Maududi addresses this point: "Though at times it [the Quran] addresses other people and mankind in general, it mainly discusses those things which appealed to the taste of the Arabs and were linked with their environment, history and customs. This naturally gives rise to the question: Why does the Quran contain so many local and national elements of the period in which it was revealed, when it was meant for the guidance of the whole of mankind?" (Yusuf Ali translation, p. xxxvii) He addresses this by stating that "there is no philosophy, no way of life and no religion in the world which expounds, from the beginning to the end, everything in the abstract without making any references to particular cases or concrete examples, for it is simply impossible to build a pattern of life merely in the abstract." (Ali, p. xxxvii-xxxviii)

It is clear that cultural practices run deep and mould individuals and societies. One cannot really understand the impact Islam had on the Arabs without first understanding their pre-Islamic customs. The Quran is in the language of those receiving the message, both literally in Arabic, and figuratively, in the cultural "language" that one behaves through. That may account for the reason why some may argue that certain sexist attitudes are encouraged in the Quran; yet in a deeper, more complete reading, one that considers and respects the historical context, it encourages a liberating equality of women. Couldn't it be that those so-called sexist attitudes in light of modern feminist teachings, are based on today's interpretation of the Quran and may not have been originally intended or taken as sexist 1400 years ago?

It is also important to understand how early Muslims' interpretations of Islam were affected by their culture and the social and political climates, even decades after the death of the Prophet. For example, there were vast differences in the way the two early Islamic intellectual centers interpreted law. Medina was the site of the first Muslim community and had traditional roots to Islam and the Prophet and as a result, had access to an abundance of hadith. Kufa (Iraq) also became a center of intellectual thought, but as distinguished from Medina, it was not as closely linked to Islamic traditions and jurists there had to use more analogy. The legal methods in Kufa and Medina were similar, but "differed to no small degree." (Coulson, 47) Kufa was a cosmopolitan center, where "women enjoyed a higher estimation", whereas Medina was more insular and closely knit. In Iraq, women could contract their own marriages; whereas in Medina this was not so. "In short, the Quran was interpreted by both schools in the light of existing social circumstances...Apart from such differences in the details of the law the whole outlook and attitude of the scholars was conditioned by their respective environments. A conservative attachment to tradition is the hallmark of the early Medinian jurists, while their Kufan colleagues, living in a newly formed society which had no such roots in the past, were animated by a spirit of free enquiry and speculation." (Coulson, 49-50)

Even in traditionally inclined Medina, the first compendium of Islamic law--Muwatta by scholar Malik ibn Anas (d. 796)--documents legal precedents and interpretations of Islamic practice, some of which were counter to earlier practice during the time of the Prophet. (Coulson, 46-47) Also, it is reported that when renowned scholar al-Shafi'i moved to Egypt after first practicing law in Kufa, he changed many of his legal opinions to reflect the social climate and needs of the Egyptian society. (Need reference and perhaps an example relevant to women)

Incorporating the Cultural Context

Once we recognize that Islam had to be introduced to the world within a cultural context--that of the Arabs in Arabia--how do we then sort through what is strictly cultural and what is the essence of the religious teachings? Through time, two schools of interpretation on Islam's teachings and how they take into account cultural context prevailed: the dissenting, non-traditional view is that Islam's teachings are broad fundamentals, and the specific practices and regulations Muhammad put into use was intended for their immediate social context, as not necessarily binding to Muslim societies at all times; the more traditional view of Islam's teachings emphasizes the practices and regulations and paid little attention on Islam's fundamental teachings of spiritual equality of men and women and the fair treatment of women. "Had the ethical voice of Islam been heard, I here suggest, it would have significantly tempered the extreme androcentric bias of the law, and we might today have a far more humane and egalitarian law regarding women," said Leila Ahmed. (Ahmed, p. 88)

The ethical and moral qualities outlined in Islam may be universal, but the practice will be affected by time and space. Through time, it became clear that cultural, historical and political contexts directly affected the status of women, despite the Quran's clear guidelines, as explained by Noel J. Coulson and Doreen Hinchcliffe.

The modicum of Quranic rulings were naturally observed, but outside this the tendency was to interpret the Quranic provisions in the light of the prevailing standards.... In particular, the general ethical injunctions of the Quran were rarely transformed into legally enforceable rules, but were recognized as binding on the individual conscience. Thus, for example, a husband was never required to show that he had any reasonable or proper motive before exercising his power to repudiate his wife. And while the Quran might insist upon impartial treatment of co-wives in polygamous unions, classical Islamic law did not elevate this requirement into any kind of legal restriction upon the husband's entrenched right to have four wives. The result was that the Quranic provisions concerning women's status and position in the family were dissipated and largely lost. (Coulson and Doreen Hinchcliffe, "Women and Law Reform in Contemporary Islam," in Women in the Muslim World, ed. Lois Beck and Nikki Keddie (cambridge: Harvard University Press, 1978), p. 37-38, quoted in Ahmed, p. 92.)

The Quranic verses addressing women and unambiguously declaring their spiritual equality to men did not sink well in the religious community decades after the Prophet's death. Abu Hamid al-Ghazali, an eminent 8th century theologian, shares sentiments similar to Aristotle's argument that women are innately inferior to men. Al-Ghazali gives this advise to his followers: "Consider the women who have struggled in the path of God and say, 'o my soul, be not content to be less than a woman, for it is despicable for a man to be less than a woman in matters of religion or of this world.'" (Ahmed, p. 68) How was it that such a negative sentiment could be made, despite its clear contradiction to the Quran? (See the spiritual equality chapter). Leila Ahmed explains that it was the conquests that Islam made in other territories, such as the Iran-Iraq region of al-Ghazali and also the Mediterranean Middle East, that kept their cultural attitudes to women, despite their acceptance of Islam. "[T]he pronouncements and broad recommendations of the Quran would be heard one way in Arabia [during the time of the Prophet] and quite another way in the societies to which it was transposed. Arab mores themselves, moreover, changed as the Arabs adopted the ways of the conquered peoples and were assimilated into their new environments." (Ahmed, p. 68)

Hopefully what this chapter has done, other than to perhaps confuse the reader, is to really introduce to you some of the challenges and politics behind understanding Islamic issues. We want readers to understand that the reason it may perhaps confuse you is because many issues in Islam are not as definitive as many of us were led to believe. When you read about a specific Islamic issue, you can now ask yourself the following: What is it based on in the Quran? What are the different interpretations of these verses? What sunna or ahadith supports this? How does this compare to the practice of the Arabs before Islam? Of the non-Muslim Arabs during Islam? How authentic or binding are they? What is the ijma of the scholars on this issue? Although much of Islamic issues are decided upon by those possessing the proper technical ilm (knowledge), this does not preclude laypersons from asking questions for ourselves. The Quran encourages all people to seek the truth and use the capabilities God has endowed on us. Once we give this up to an intellectual elite, we have forfeited our right to think.

Bibliography 

Noel James Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964), p. 102.
ibid, p. 61
John L. Esposito, Women in Muslim Family Law (New York: Syracuse University Press, 1982), p. 3.
The Holy Qur'an, trans. A. Yusuf Ali (American Trust Publications), p. xxxix.
ibid.
Coulson, p. 43
Esposito, p. 8
Muhammad Asad, The Message of the Quran (Gibraltar: Dar al-Andalus, 1980), p. 100.
Sayyid Abul A'la Mawdudi, Towards Understanding the Qur'an, Vol. II (London: The Islamic Foundation, 1989), p. 5.
The Holy Qur'an, trans. A. Yusuf Ali (American Trust Publications), p. 178.
Asad, The Message of the Quran, p. 100.
ibid
The New American Bible, 1 Timothy 2:11, 12.
The New American Bible, 1 Peter 3:7.
Ahmed, Laila, Women and Gender in Islam, Historical Roots of a Modern Debate (New Haven: Yale University Press, 1992), p. 4-5.
Bukhari, vol 7/chapter 80, #112
The New American Bible, 1 Timothy 2:14.
Ahmed, Laila, Women and Gender in Islam, p. 65.
Mernissi, Fatima, The Forgotton Queens of Islam (Minneapolis: University of Minnesota Press, 1993), p. 142.
Mernissi, Fatima, The Forgotton Queens of Islam, p. 142-144.
Asad, The Message of the Quran, p. 576.
Mernissi, Fatima, The Forgotton Queens of Islam, p. 142-144.
Ahmed, Laila, Women and Gender in Islam, p. 61.
ibid, p. 72.
ibid, p. 70
ibid, p. 70
In Fraternity, p. 73-74
ibid, p. 73
Ahmed, Laila, Women and Gender in Islam, p. 70
ibid, p. 71
ibid, p. 71

For other chapters:

Esposito, John L., Women in Muslim Family Law, New York: Syracuse University Press, 1982.
Haykal, Muhammad Husayn, The Life of Muhammad, North American Trust Publications, 1976.
Mernissi, Fatima, The Veil and the Male Elite, a Feminist Interpretation of Women's Rights in Islam, New York: Addison-Wesley Publishing Company, 1991.
The New American Bible, New York: P.J. Kenedy & Sons, 1970.

Various sources of sharia are used by Islamic jurisprudence to elucidate the body of Islamic law.[1] The primary source accepted universally by all Muslims is the Qur'an, the majority adhering also to the traditionally reported Sunnah, but rejected by others; Quranism. The Qur'an is the holy scripture of Islam, believed by Muslims to be the direct and unaltered word of God. The Sunnah consists of the alleged religious actions and quotations of the Islamic prophetMuhammad, narrated through his Companions and the Imams (per the beliefs of the Sunni and Shi'ite schools respectively).[1]

As Islamic regulations stated in the primary sources do not explicitly deal with every conceivable eventuality, jurisprudence must refer to resources and authentic documents to find the correct course of action.[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; pure 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 tradition 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[edit]

Qur’an[edit]

Further information: Wikisource:Legislation Verses Of Quran

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[edit]

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[edit]

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[edit]

Main article: Ijma

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 jurisprudenceFormation of ijma'Rationale
Hanafithrough public agreement of Islamic juriststhe jurists are experts on legal matters
Shafi'ithrough agreement of the entire community and public at largethe people cannot agree on anything erroneous
Malikithrough agreement amongst the residents of Medina, the first Islamic capitalIslamic tradition says "Medina expels bad people like the furnace expels impurities from iron"
Hanbalithrough agreement and practice of Muhammad's Companionsthey were the most knowledgeable on religious matters and rightly guided
Usulionly 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[edit]

Main article: Qiyas

Qiyas or analogical reason is the fourth source of the 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 Hanafischool of thought very strongly supports qiyas. ImamAbu 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 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.
— Abu Hanifa[20]

The Shafi'ischool of thought 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 and sunnah. According to Shafi'i, 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. [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[edit]

Main article: istihsan

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[edit]

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[edit]

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[edit]

Main article: Ijtihad

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 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 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 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.[29]

Local custom[edit]

Main article: Urf

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] the 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[edit]

Notes[edit]

  1. ^ abcdefghMutahhari, Morteza. "Jurisprudence and its Principles". Tahrike Tarsile Qur'an. Retrieved 2008-07-26. 
  2. ^"Shari`ah and Fiqh". USC-MSA Compendium of Muslim Texts. University of Southern California. Retrieved 2008-07-26. 
  3. ^Motahhari, Morteza. "The Role of Ijtihad in Legislation". Al-Tawhid. Retrieved 2008-07-26. 
  4. ^Momen (1985), p.185–187 and 223–234
  5. ^Momen (1985), p.188
  6. ^ abNomani and Rahnema (1994), p. 3–4
  7. ^ abcdNomani and Rahnema (1994), p. 4–7
  8. ^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. ^ abMahmasani, 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.
  16. ^Muslehuddin, M. Philosophy of Islamic Law and the Orientalists. New Delhi: Taj printers, 1986. pg.146
  17. ^ abcEncyclopædia Britannica, Ijma.
  18. ^"Id̲j̲māʿ", Encyclopaedia of Islam
  19. ^ abNomani and Rahnema (1994), p. 7–9
  20. ^ abcdefNomani 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. ^ abcdefNomani and Rahnema (1994), p. 13–15
  24. ^ abEncyclopædia Britannica, Istihsan
  25. ^ abcHasan (2004), p.157–160
  26. ^Hallaq, "Considerations on the Function and Character of Sunnī Legal Theory".
  27. ^Hodkinson, Keith. Muslim Family Law: A Sourcebook. India: Routledge, 1984.
  28. ^ abNomani and Rahnema (1994), p.15–16
  29. ^ abcIjtihad, Encyclopaedia of Islam
  30. ^ʻAlwānī (1973), p. 9
  31. ^ ab"Urf", Encyclopaedia of Islam
  32. ^ abHasan (2004), p. 169–71

References[edit]

Encyclopedias[edit]

  • The New Encyclopædia Britannica (Rev ed.). Encyclopædia Britannica, Incorporated. 2005. ISBN 978-1-59339-236-9. 
  • 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[edit]

  • 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[edit]

Sunni

Shia

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

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