The Sources Of Shariah
 

[B]22.WHAT ARE THE SOURCES OF SHARIAH:[/B]

For Muslims, life did not begin at birth, but a long time before that. Before even the creation of the first man. It began when God created the souls of everyone who would ever exist and asked them, “Am I not your Lord?” They all replied, “Yea.”

God decreed for each soul a time on earth so that He might try them. Then, after the completion of their appointed terms, He would judge them and send them to their eternal destinations: either one of endless bliss, or one of everlasting grief.

This life, then, is a journey that presents to its wayfarers many paths. Only one of these paths is clear and straight. This path is the Shariah.
Divine Guidance

In Arabic, Shariah means the clear, well-trodden path to water. Islamically, it is used to refer to the matters of religion that God has legislated for His servants. The linguistic meaning of Shariah reverberates in its technical usage: just as water is vital to human life so the clarity and uprightness of Shariah is the means of life for souls and minds.

Throughout history, God has sent messengers to people all over the world, to guide them to the straight path that would lead them to happiness in this world and the one to follow. All messengers taught the same message about belief (the Qur’an teaches that all messengers called people to the worship of the One God), but the specific prescriptions of the divine laws regulating people’s lives varied according to the needs of his people and time.

The Prophet Muhammad (God bless him and give him peace) was the final messenger and his Shariah represents the ultimate manifestation of the divine mercy. “Today I have perfected your way of life (din) for you, and completed My favour upon you, and have chosen Islam as your way of life.” (Qur’an, 5: 3) The Prophet (pbuh) himself was told that, “We have only sent you are a mercy for all creation.” (Qur’an, 21: 179)

[B]Legal Rulings[/B]

The Shariah regulates all human actions and puts them into five categories: obligatory, recommended, permitted, disliked or forbidden.

Obligatory actions must be performed and when performed with good intentions are rewarded. Its opposite is the forbidden. Recommended action is that which should be done. Its opposite is the disliked. Permitted action is that which is neither encouraged nor discouraged. Most human actions fall in this last category.

The ultimate worth of actions is based on intention and sincerity, as mentioned by the Prophet (pbuh), who said, “Actions are by intentions, and one shall only get that which one intended.”

[B]Life under the Shariah[/B]

The Shariah covers all aspects of human life. Classical Shariah manuals are often divided into four parts: laws relating to personal acts of worship, laws relating to commercial dealings, laws relating to marriage and divorce, and penal laws.

[B]Legal Philosophy[/B]

God sent prophets and books to humanity to show them the way to happiness in this life, and success in the hereafter. This is encapsulated in the believer’s prayer, stated in the Qur’an, “Our Lord, give us good in this life and good in the next, and save us from the punishment of the Fire.” (2: 201)

The legal philosophers of Islam, such as Ghazali, Shatibi, and Shah Wali Allah explain that the aim of Shariah is to promote human welfare. This is evident in the Qur’an, and teachings of the Prophet (pbuh).

The scholars explain that the welfare of humans is based on the fulfillment of necessities, needs, and comforts.

[B]Necessities[/B]

Necessities are matters that worldly and religious life depend upon. Their omission leads to unbearable hardship in this life, or punishment in the next. There are five necessities: preservation of religion, life, intellect, lineage, and wealth. These ensure individual and social welfare in this life and the hereafter.

The Shariah protects these necessities in two ways: firstly by ensuring their establishment and then by preserving them.

1. Religion: To ensure the establishment of religion, God Most High has made belief and worship obligatory. To ensure its preservation, the rulings relating to the obligation of learning and conveying the religion were legislated.

2. Life: To ensure the preservation of human life, God Most high legislated for marriage, healthy eating and living, and forbid the taking of life and laid down punishments for doing so.

3. Intellect: God has permitted that sound intellect and knowledge be promoted, and forbidden that which corrupts or weakens it, such as alcohol and drugs. He has also imposed preventative punishments in order that people stay away from them, because a sound intellect is the basis of the moral responsibility that humans were given.

4. Lineage: marriage was legislated for the preservation of lineage, and sex outside marriage was forbidden. Punitive laws were put in placed in order to ensure the preservation of lineage and the continuation of human life.

5. Wealth: God has made it obligatory to support oneself and those one is responsible for, and placed laws to regulate the commerce and transactions between people, in order to ensure fair dealing, economic justice, and to prevent oppression and dispute.


[B]23.THE QURAN AS SOURCE OF SHARIAH:[/B]

The Qur’an was revealed to the Prophet (pbuh) gradually, over 23 years. The essence of its message is to establish the oneness of God and the spiritual and moral need of man for God. This need is fulfilled through worship and submission, and has ultimate consequences in the Hereafter.

The Qur’an is the word of God. Because of its inimitable style and eloquence, and, above all, the guidance and legal provisions it came with, it ensures the worldly and next-worldly welfare of humanity.

God Most High said, “Verily, this Qur’an guides to that which is best, and gives glad tidings to the believers who do good that theirs will be a great reward.” (Qur’an, 17: 9) And, “There has come unto you light from God and a clear Book, whereby God guides those who seek His good pleasure unto paths of peace. He brings them out of darkness unto light by His decree, and guides them unto a straight path.” (Qur’an, 5: 15)

[B]24. SUNNAH AS A SOURCE:[/B]

The Sunnah is the second source of Islamic law. Sunnah is an Arabic word which means "Method". It was applied by the Prophet Muhammad (peace be upon him) as a legal term to represent what he said, did and agreed to. Its authority is derived from the text of the Quran. The Quran says,

"For you the life of the Prophet is a model of behaviour" (33:21).

Many books of traditions were compiled by the companions of the Prophet (p.b.u.h.). These were later on incorporated in the great collections of Hadith (i.e. traditions) Books of Bukhari, Muslim etc. The collectors of traditions adopted a very scientific system in collecting the Traditions. They did not record any tradition except with the chain of narrators. Every tradition gives the name of the last narrator of the tradition from whom he learnt the tradition and so on back to the Prophet or Companion of the Prophet. The Sunnah, which is established through reliable narrators, is fully dependable as legal element.

The Quran and the Sunnah are complimentary. The meaning of the Quran is general in nature, the Sunnah makes it specific and particular. The Sunnah explains the instructions of the Quran. The Quranic injunction is sometimes implicit, the Sunnah makes it explicit by providing essential ingredients and details.

The Quran and the Sunnah are the primary sources of Islamic law. Ijma (that is consensus of opinion of scholars) and Qiyas (that is laws derived through analogical deduction) are the secondary or dependent sources of Islamic law or Shariah.

[B]25. IJMA (CONSENSUS)[/B]

Ijma or the consensus of scholars signifies the importance of delegated legislation to the Muslim community. The Muslim society requires such a rule making power to meet the practical problems for implementation of Islamic Shariah (Islamic Law). Ijma has been technically defined as the consensus of the jurists of a certain period over a religious matter. Ijma is considered a sufficient evidence for action because the Prophet of Islam said, "Muslim (majority or main body) will never agree on a wrong mailer". As such the agreement of the scholars of Islam on any religious matter is a source of law in Islam (Ref: Principles of Islamic Jurisprudence by M. Hashim Kamali).

[B]26. QIYAS[/B]

Qiyas is the fourth important source of Islamic law. Qiyas means analogy. Qiyas or analogy is resorted to in respect of problems about which there is no specific provision in the Quran or the Sunnah of the Prophet. In such issues the scholars have derived law through analogical deduction on the basis of the provisions of the Quran and the Sunnah on some similar situation. The scholars have developed detailed principles of analogical deductions or Qiyas in the books of Islamic jurisprudence.
[B]
IJTIHAD:[/B]

Qiyas is a kind of Ijtihad. The Prophet has permitted Ijtihad that literally means 'to exert'. Technically it means to exert with a view to form an independent judgement on a legal issue. ljtihad is the Islamic method of facing the new situations and problems in the light of the general principles of the book of Allah (SWT), the Quran and the traditions of the Prophet or the Sunnah.

Apart from Qiyas, there are other methods of Ijtihad such as Istihsan (that is juristic preference from different interpretations) and Masalaha (that is moral consideration).

In addition to the above sources, the practices of the Khulafa-e-Rashidun (first four rulers of Islam), the decisions of the judges and the customs of the people are also considered sources of Islamic law in matters which are not spelled out in the Quran and the Sunnah.