SOURCES OF ISLAMIC LAW

Introduction:

The Islamic law is referred to as “Sharia”. Islam has given the most comprehensive legal system to mankind. Islam has its own personal, civil, criminal, evidence and international law.

I.) The Quran:

Since the text of the Quran is held to be the very word of Almighty God Himself, it almost goes without saying that the Quran is not only a source of Sharia but the primary material source.

It is criticised that Quran is not a code of law because of two main reasons. Firstly, it is argued that Quran is rather a moral code determining ones way of life. Secondly, it is also said that Quran is not a code of law as out of its 6219 verses, no more than about 600 deal with specifically legal matters.

However, one must remember that, unlike western legal systems, the Sharia makes no distinction between religious and civil matters; it is the codification of God's Law, and it concerns itself with every aspect of legal, social, political and religious life. Secondly, information is judged by its quality not quantity. It is the Quran that identifies six specific crimes against religion i.e. “hadd punishments”. The Quranic legislation also covers a range of other topics, e.g. homicide, marriage, divorce and inheritance. There is an authentic hadith of the Prophet that “he who knows the law of inheritance is possessed of half the knowledge of the world”. But if we look at the Quran, the complete outline of the law of inheritance is encapsulated within only three verses (11, 12 and 176) of Surah Al-Nisa and Ijma and Qiyas, which give the details of succession, derive their authority from these three verses only.

No description, however, can fully capture the great importance of the Quran to Muslims. Objectively, it is the foundation and framework of Islamic law, and its primary material source.

II.) The Sunna:

The Sunna is the second most important source of Islamic law. It comprises the practices and precedents set by the Prophet Muhammad himself. The authority of the Sunna is derived from the text of the Quran. Because the circumstances of each revelation were thought necessary to correct interpretation, it was imperative to gather as many traditions as possible about the actions of the Prophet to fully understand the Quran.

The Sunna clarifies the ambiguities of the Quran. The Quranic injunction is sometimes implicit; the Sunnah makes it explicit by providing essential ingredients and details. The details of the acts of prayer, fasting, alms-giving and pilgrimage were all illustrated by the Sunna of the Prophet (p.b.u.h.). Again, it was established by the Sunna that a killer cannot inherit from the property of his victim. Thus, for answers to many problems to which the Quran offers no solution jurists turn to the second source of Islamic Law. For, according to the Quran itself, Prophet Muhammad was not only in possessions of the Book; he was also endowed with Wisdom.

But the wide legislative role of the Sunna cannot overcome that of the Quran because it lacks originality in itself; rather it is just the elaborations of the Quran put into the practice by the Prophet. The Words of the “Quran” are of “divine” origin while the words of the “Hadith” are words of the “Prophet” reported by people. And it is obvious that divine words have the utmost precedence. Secondly, after the death of the Prophet (p.b.u.h.), it was not earlier than two and a half centuries that the written hadith compilation from religious scholars came onto the scene and a lot of fabrication took place into that period. But Quran is the only book of Allah which has not been distorted and thus it is the only reliable source of Islamic law. There is an authentic tradition of the Holy Prophet (p.b.u.h) in which he is reported to have said that if you find any tradition of mine contrary to the instructions of Quran, then leave my tradition and follow the Quran.

III.) Ijma:

Ijma represents the third source of Islamic law which is more like delegated legislation. It is defined as the consensus of the jurists of a certain period over a religious matter. It is considered a sufficient means for action because the Prophet of Islam said, “My community will not agree on an error”.

A good illustration for the principle of Ijma occurred right after the death of the Prophet: no guidance was available on who would now be the political leader. The election of Abu Bakr to the post of caliph by the votes of the people was the first manifestation of Ijma. Today there are many schools of law in the Muslim community. For them the doctrine of consensus was a source of harmony.

However, the formation of different schools of law also had an adverse effect on the instrument of Ijma. In the course of time, it became impossible to obtain a consensus on a given problem just by asking all those learned in Islamic law. There was no organisation that represented all jurists, and as a result Ijma has come to be determined by looking into the past. Thus, unlike Quran, the authority of Ijma for legal innovation is very limited and that is why it ranks lower than the Holy Quran.


IV.) Qiyas:

Qiyas is essentially a tool of interpretation and is not a mean to alter the existing law but can only be used to find a legal principle in conformity with Quran and Sunna for a new factual situation. Ijtihad means “individual reasoning”. It involves both the knowledge of the rules of Islamic law and the exercise of one’s judgment; even Qiyas would be impossible if jurists were not allowed to apply their own reasoning.

An example of this procedure can be found in the prohibition of alcohol. The drinking of wine is one of the Quranic crimes against religion. With the appearances of other alcoholic drinks unknown to early Islam the jurists extended the prohibition of wine to include such drinks by analogical deduction from the Quranic ruling.

However, this source of law also has its weaknesses. Firstly, it ranks below because it derives its authority from the Quran. Human reason was not to be exercised independently but rather in accordance with the Divine Will as manifested in the Quran. Secondly, Ijtihad has been a controversial subject in Islamic history. Once the schools of Islamic law had been firmly established, the prevailing opinion was that that the privilege of Ijtihad was restricted to the great scholars of Islamic law, like for instance the founders of the schools of Islamic law. Thus, there is a strong opinion law that by the 10th century all main principles of Islamic law had been settled and therefore “the gates of Ijtihad” had been closed. Thus, it is noticeable that it is subordinate to Quran because Quran is an ever illuminating source of Islamic law but Qiyas/Ijtihad is just a matter of past now.

V.) Additional Sources of Law:

In its early stage, Islamic jurisprudence was heavily inspired from prevailing customary law e.g. the practices of the Caliphs, the decisions of the judges and the traditions of the people. But even then, Quran acted as a mentor guiding the people. For instance, Caliph Abu Bakr made alms payment compulsory in the light of the Quran; the Qazis i.e. judges did equity by seeking guidance from Quranic verses; and it was under Verse 3 of Surah Al-Nisa that the customary right of unlimited polygamy was curtailed only to a maximum of four wives. Thus, the supremacy of Quran as a primary Islamic source got fully established in that epoch.

Courtesy: Hassan Nawaz

PS: Complete notes on Ijtehad will be posted later InshaAllah ..

Regards ..