SOURCES OF ISLAMIC LAW
Islamic law is based on Sharia. The word Sharia means open, bright, straight and clean path. But in Islamic law Sharia means the divine laws and instructions.
The sources of Islamic law can be divided into two categories i.e., primary and secondary sources of law.
Quran as a source of law:
The Quran which is not only of divine origin but has existed from eternity was revealed in parts to the prophet of Arabia during a space of twenty three years. It is composed of Sura’s and chapters, each having a separate designation and is composed of Ayats or versus. Most of the verses which embody rules of law, were revealed to settle questions that actually arose for decision; some in order to repeal objectionable customs like infanticide, usury, gambling; some for effecting social reforms such as raising the status of women, slaves, minorities, setting the question of succession or inheritance on equitable basis and some lay down the principles of punishment for the purpose of peace and order in the society. Many of these revelations were short. The principles contained in a simple sentence could be the foundation on whole structure of law on an issue.
The second most important source of Islamic Law is the precepts or Hadith of the Holy Prophet P.B.U.H. Often question arose before Holy Prophet P.B.U.H for decision, for the solution of which no revelation was forthcoming, and certain points had to be explained and made clear. The pronouncement made by the Holy Prophet P.B.U.H on all such occasions over known as Hadith or precepts. Sunnah can be divided into three types.
Sunnah al-Qawliyah are the sayings, statements and utterances of the Holy Prophet P.B.U.H. Technically they are called as Hadith.
These are the deeds and actions of the Holy Prophet P.B.U.H which were performed by him personally. These are the best examples for the believer to follow.
Sometimes, the approval and disapproval of Holy Prophet was implied form his conduct if, for instance, a certain course of action was followed by a Muslim within his knowledge and Holy Prophet P.B.U.H expressed no disapproval thereof. Its legality was presumed. Similarly, if Holy Prop0het P.B.U.H studiously avoided a certain course of conduct, it has to be presumed that he disapproved it.
Ijma is defined as the agreement of the jurist among the followers of Muhammad P.B.U.H in a particular age on a question of law. Its authority as a source of law is founded on certain Quranic and Traditional text.
- Whatever the Muslims hold to be good is good before God
- It is incumbent upon you to follow the most numerous body.
- Obey Allah and the prophet (P.B.U.H) and those who have authority.
Ijma among different Schools of Law:
The four suni schools of law hold ijma to be good source of law in all matters, while some shia’s, kharij’s and Nazzam do not recognize this source of law.
Reason for believing in ijma:
The Quran deals with only certain condition or circumstances and these are by no mean sufficient to cover the numerous questions that arise from day to day. Thus, concurrent opinion of all learned men is a valuable source for the guidance of believers.
All the sunni school of jurisprudence agree that in matters which have not been covered in Quran, or Hadith or ijma the law may be deduced, from any of these three authorities by the use of Qiyas.
The root meaning of the world qiyas is measuring; accord, equality. As a source of law if is defined by Hanafi’s as an extension of law from a original text to which the process is applied to in a particular case by means of common illat or effective cause, which cannot be ascertained merely by the interpretation of the language of the text.
Ijtehad literally means striving, exerting. In Islamic Jurisprudence it means the application by a lawyer by all his faculties to the consideration of the authorities with a view to find out what in all probability is the law. In other worlds ijtehad is the capacity for making deductions in matters of law in cases to which no express text or rule of ijma is applicable.
Istihsan or juristic preference was developed by Imam Abu Hanifa as the Hanafi lawyers regard it as a valid source of law.