The Origins, Sources and Evolution of Islamic law
The Quran
1. Revealed over a period of about 23 years
2. Means reading/reciting
3. Contains divine commands of God, duty of every muslim to submit themselves to these
commands
4. Islam → submission to the will of God
5. Quran began with Surah Al-Alaq (96:1) “Read, in the name of your Lord”
6. Quran ended with Surah Al-Maida (5:3) “Today, I have perfected your religion for you and
completed my favor upon you, and chosen Islam as your religion”
7. Contains 6,219 verses, collected in 114 chapters - surahs
8. 600 verses deal specifically with legal matters - clash between Coulson (Western) and Kamali
(Muslim) scholars
a. Family law
i.
Iddah period - waiting period after
ii.
Specific naming of nine heirs/succession on death
b. Penal law
c. Civil law
d. 1/10th of the Quran concerns legal principles
9. Kamali
a. Quran → manifest revelations → most ayats were revealed as a response to problems
encountered, e.g., Gambling, Polygmany
b. Sayings/Ahadith of Prophet Muhammad → internal revelations, not in Quran, cannot be
ranked on equal with Quran
c. While there is consensus amongst Ulemas regarding Quran being the first source of
Shariah for Muslims, some suggest that it is the only source - others explanatory in nature
d. Quran → Huda/Guide
i.
Al-Ahkam al-Amaliyyah (practical/legal contents of Quran) constitute the
Fiqah Al-Quran (Law of the Quran)
e. Revelation of Quran
i.
Larger Part → Makkah, 12.5 years, 19 out of 30 parts
ii.
Remainder → Madina, 9.5 years
iii.
Revelation all at once would have made it difficult for people to understand and
memorize it considering the illiteracy of Arabia at that time
iv.
Ulemas create a distinction between the two distinct revelation in terms of surahs
while observing the time of revelation, place of revelation and nature of the
audience::
1. Makki Surahs → “O’ Mankind and O’ People”
a. Focused on Oneness of God, the hereafter and an invitation to
Islam
2. Madni Surah → “O’ Believers”
a. Focused on rules and regulations for different aspects of life
10. Compilation of Quran
a. One view → companions wrote the verses personally on different materials, e.g., animal
skins
b. Other views → Compilation took place after the demise of Holy Prophet
c. Official version compiled during the reign of first caliph Hazrat Abu Bakr and the third
caliph Hazrat Usman
d. Kamali
i.
Hazrat Abu Bakr ordered compilation following the martyrdom of almost 70
Huffaz in the Battle of Yamamah
ii.
Zaid Bin Sabit was the scribe of the Holy Prophet and was therefore tasked with
the process of compilation
iii.
Hazrat Usman → took up on the compilation process and verified verses from
Hazrat Zaid Bin Sabit to ensure the authenticity of verses and disregard other
inaccurate versions of the Holy Quran
iv.
No other language is factored into Quran for the reason that it was revealed in
Arabic and exists in the original form
v.
A consensus exists amongst the ulemas regarding the authenticity of the verses of
the Quran proven by universally accepted testimony till today
11. Classification of Quranic Verses:
a. Kamali → Quran not classified, the verses although general in nature lay the foundation
for important principles of islamic law, e.g.,
i.
“Believers abide by your contracts” (5:1) → Islamic Contract Law
ii.
“The recompense for an injury is an injury thereto” (42:40) → Islamic Law of
Tortious Liability
b. Need for Classification
i.
Quran - source of law, itself needs to be authenticated
ii.
Interpretation must be such that enables derivation of law
iii.
Consistency in interpretation
iv.
Classical jurists → categorized the verses in terms of their nature and rules of
interpretation
c. Definitive - qat’i
i.
Unambiguous, definitive and certain
ii.
Clear and specific in nature suggesting only one meaning
iii.
iv.
v.
Excluding the room of ambiguous interpretation
Undisputed validity
Examples:
1. “In what your wives leave, your share is a hald, if they leave no child”
(Surah Al-Nisa 4:12)
2. “The adulterer, whether a man or a woman, flog them each a 100
stripes” (Surah Al-Nur 24:2)
3. “And those who accuse chaste women of adultery and fail to bring four
witnesses to prove it, flog them 80 stripes” (Surah Al-Nur 24:4)
4. Rules on Salah, Fasting, Inheritance, Penalties
d. Speculative - zanni
i.
Open to interpretation (Ijtihad)
ii.
Best Interpretation → obtained from Quran by looking at it as a whole
iii.
Sunnah supplements interpretation → interpretation in authentic hadith causes
it to become a part of Quran rendering it binding
iv.
Companions → in terms of close familiarity with text, surrounding
circumstances and teachings of the Holy Prophet
v.
Examples:
1. “Prohibited to you are your mothers and your daughters” (Surah AlNisa 4:23)
a. Qati’i in terms of prohibition of marriage with mother and
daughter
b. Speculative in terms of illegitimate daughters regarding
inheritance, guardianship, custody
c. Hanfi Interpretation → prohibition on marriage with one’s
illegitimate daughter
d. Shafi Interpretation → no prohibition on marriage with one’s
illegitimate daughter
2. “To be banished from the earth” (Surah Al-Maida 5:33) → penalty for
Hiraba (highway robbery)/waging war on community
a. Banishment → exile
b. Hanfi Interpretation → imprisonment and not exile for the
reason that exile does not prevent the measure, distinction
between islamic and non-islamic land
e. General - amm
i.
Applicable to all members of a specific set
ii.
Example → “Every soul shall taste death” (Surah Al-Imran 3:185) →
applicable to all living things, no exceptions
iii.
Further be classified into following:
1. Aam that is totally unspecified
a. “Allah is aware of all things” - very rare
2. Aam in wording but Khass is meaning
a. “Then depart from whence the people depart” (Surah AlBaqarah 2:199)
b. “People” refers to every tribe other than Quraish
c. Wording seems to be Aam, the meaning is Khass
3. Aam that has been specified
a. “Prohibited to you are your mothers and your daughters”
(Surah Al-Nisa 4:23)
f. Particular - khass
i.
Applicable to a single subject/specific number of objects
ii.
Limited applicability
iii.
Example → Surah Al-Noor 2:199 prescribing punishment of 80 lashes for
slanderous accusations
1. No room for speculation
2. Quantitatively khaas
3. However, contrast with supplementary penalty for slanderous
accusations → “Never accept the testimony for they are evil doers,
except for those who repent afterwards and make amends”
a. Definitive that the accuser be disqualified as a witness
b. Doubtful → latter part, limiting scope of applicability
iv.
Khass is generally definitive but an aspect of it may be speculative in nature
g. Decisive - Muhkamat
i.
Clear and plain ayat that can be understood by everyone
ii.
Foundations of Quran
iii.
Explain aborgated rulings, the allowed, the prohibited, laws, limitations
h. Allegorical - Mutashabihat
i.
Unclear ayat regarding the unknown world, e.g., hereafter
ii.
Examples → questionings in the grave, life after death
Sunnah
1. Other main source of islamic law
2. Comprises of
a. Hadith/Sunnah Qawliyyah / Sayings
i.
Verbal sayings of he Prophet on any given subject
ii.
“Livestock is liable to zakat”
b. Sunnah Al Filiyya / Practices
i.
Deeds/Acts, e.g., the way he performed Salah, fasted, rituals of Hajj
ii.
Example → authorization of amputation of the hand of the thief from the wrist
as illustrated in Surah Al-Maida 5:38
c. Sunnah Taqririyahh / Tacit Approvals of the Prophet
i.
Sayings/actions of the companions of the Holy Prophet which came to his
knowledge and he did not object
ii.
Inferred from his silene and lack of disapproval and approval/verbal confirmation
iii.
Example → report that two companions went on a journey and performed
ablution upon failure to find water and therefore performed the obligatory
3.
4.
5.
6.
7.
prayers with tayammum. The Prophet did not disapprove of this course of
action
Imam Shafi → sunnah as important as quran
a. The book (kitaab) and wisdom (Hikmah) are two different concepts
b. The former relates to God and the latte to the Holy Prophet
c. They both have been mentioned together in the Quran
i.
E.g., Surah Al-Jummah 62:2 - “teaching them the book and the hikmah”
d. Quranic verses direct believers to follow the Sunnah
i.
“O’ you who believe, obey Allah and obey the messenger” (Surah Al-Nisa
4:59)
ii.
“He who obeys the messenger, obeys Allah” (Surah AL-Nisa 4:80)
e. Shafi’i categorized the Sunnah into three types:
i.
Sunnah which prescribes the like of what God has revealed in His book
ii.
Sunnah which explains the general principles of the Qur’an and clarifies the will
of God
iii.
Sunnah in which the Prophet has ruled on matters on which the Qur’an is silent
Quran and Sunnah complement each other and do not contradict, Hadith of the Prophet “I have
left two things among you. You shall not go astray as long as you hold on to them, the book of
Allah and my Sunnah”
Hazrat Usman + Abu Bakr resorted to Sunnahs in issues where they could not find an answer
Hazrat Umar is reported to have directed the judges to give regard to the Sunnah whenever they
could not find an answer/guidance in the Quran
Legality of Sunnah
a. Sunnah Ghayr Tashriyahh/non-legal
i.
Comprises of ritual activities of the Prophet, e.g., manner of
eating/sleeping/dressing
ii.
Not important for Prophetic mission
b. Sunnah Tashriyahh/legal
i.
Exemplary conduct
ii.
Prophet passed down rulings in the capacity of
1. Messenger of God
2. Head of the State/Imam
a. “Whoever kills a warrior in battle may take his belongings” entitles the soldiers to belongings of the deceased
b. Allocation of state officials, distribution of booty, signing of
treaties etc.
3. Judge
a. In particular disputes usually consist of two parts: the part which
relates to claims, evidence and factual proof and the judgment
which is issued as a result.
b. The first part is situational and does not constitute general law,
whereas the second part lays down general law, with the proviso
however, that it does not bind the individual directly, and no-one
may act upon it without the prior authorisation of a competent
judge
c. Since the Prophet himself acted in a judicial capacity, the rules
that he has enacted must therefore be implemented by the office
of the qadi.
d. Sunnah which consists of general legislation often has the
quality of permanence and universal application to all Muslims.
Sunnah of this type usually consists of commands and
prohibitions which are related to the Qur'an in the sense of
endorsing, elaborating or qualifying the general provisions of the
Holy Book.
8. Sunnah is a second source of islamic law
a. The first being the Quran
b. Prophet prescribed that sunnah must not be confused with the texts of the Quran,
therefore he discouraged his companions from codification of sunnah
c. Sunnah is mainly retained in the memories of the companions
d. It is transmitted in the form of reports
e. The scope of disagreement over sunnah is more extensive as compared to the Quran
f. Jurist must resort to sunnah only in case he fails to get an answer from the Quran
g. Quran → general terms, Sunnah → explains it and specifies which meaning must prevail
h. The Sunnah of the Prophet is a proof (hujjah) for the Qur'an, testifies to its authority and
enjoins the Muslim to comply with it. The words of the Prophet, as the Qur'an tells us,
are divinely inspired (al-Najm, 53:3)
9. Sunnah is not an independent source of islamic law
a. “It is unlawful to take the property of a muslim without his express consent” →
confirms the Quranic verse, “devour not each other’s properties unlawfully unless it is
through trade by your consent” (Surah Al-Nisa 4:19)
b. Al-Shatibi and Al-Shawkani → Sunnah an independent source
c. Al-Shafi → Sunnah explanatory
10. Hadith
a. A hadīth is an oral communication traced back to the Prophet Muhammad.
b. The Sunnah comprises the reported sayings, practices and precedents of the Prophet
Muhammad himself.
c. These were recorded after the death of the Prophet Muhammad and compiled in
collections of ahadith (the plural of hadīth)
11. Authenticity of Ahadith
a. Consensus amongst Ulemas regarding deliberate/unintentional fabrication of the ahadith
b. Reasons → Error, reckless reporting, etc
c. Before execution, Abd al-Krim bin Abu al-Ajwa confessed that he himself fabricated
around 4000 ahadith making haram appear as halal
d. Joseph Schacht → no scientific evidence to suggest that the ahadith of sunnah could
actually be attributed to the Prophet
e. N. J Coulson → Test of authenticity → careful examination of the chain of transmitters
12. Manner
a. Isnad - chain of communication from the first to the last
i.
Credibility of hadith depends on the credibility of reporter as well
b. Matn - actual text of hadith
13. Transmission of Sunnah
a. Depending on the reliability within the chain of transmission
b. Highest grade of transmitted hadith - Ahsan (Sound) → Hasan (good) → da’if (weak)
c. Mutawatir
i.
Literal meaning → continuously recurrent
ii.
Hadith reported by large number of people to the extent that the possibility of lie
does not exist
iii.
Examples → Actions regarding performing obligatory prayers, rituals of hajj,
zakat, fasting → for the reason that an indefinite number of people witnessed
Prophet in these actions
d. Masshur (well-known)
i.
Reported by one, two, or more companions but later transmitted by narrators
whose agreement on a lie is inconceivable
ii.
Example → “Killer shall not inherit”
e. Ahad (solitary hadith)
i.
Reported by single person or by odd individuals
ii.
Imam Shafi regards these as Khabbar al-Khassah
1. Ahadith reported by one, two, or more reporters but failing to fulfilling
the requirements of either mutawatir or masshur
iii.
Certain conditions need to be met for this type of hadith to be reliable
iv.
Example → “anyone who touches his sexual organ must take a fresh ablution”
→ not accepted by Hanfis for the reason that it, otherwise, would become an
established practice among all Muslims
14. Narrators of Ahadith
a. Companions – who are generally accepted to be reliable.
b. Thiqat thabitun – those who rank highest in respect of reliability next to the companions.
c. Thiqat – trustworthy but of a lesser degree than the first two.
d. Sadiq – or truthful i.e., one who is not known to have committed a forgery or serious errors.
e. Saduq Yahim – truthful but committing errors.
f. Maqbul – accepted, which implies that there is no proof to the effect that his report is
unreliable.
g. Majhul – a narrator of unknown identity.
h. Lower classes of persons who are classified as sinners, those suspected of lying and
outright liars.
15. Sahih Hadith → Authentic, narrated by first three categories, continuous isnad
16. Hasan Hadith → also includes 4-6 categories
a. Although narrators are truthful, they have not obtained the highest degree of reliability
17. Da’if hadith → narrators do not possess the qualifications required for Sahih and Hasan,
weakness in the chain of narrators
Ijma (Consensus)
1. Third source of islamic law
2. Secondary source therefore does not have a divine lament attached to it like primary sources of
islamic law - Quran and Sunnah
3. Backed by Hadith, “My people will never agree on an error”
4. Element of universal acceptance, i.e., consensus
a. Shafi → Ijma will be regarded as binding if the entire Muslim Community achieves a
consensus on a particular topic
5. Purpose → Ensuring correct interpretation of the Quran and an understanding of the Sunnah
a. Provided that derivation of law, in case of new rules, from primary sources results in
confusion and uncertainties/doubts - Ijma caters to this as a rule becomes decisive and
free of error if there exists a consensus on it
6. No deviation from the principles set in the primary sources as ijma only relates to situations
where the primary sources are not clear on a particular topic
a. A new law, with its roots not in the primary sources will have its legitimacy challenged
b. It cannot be repealed either
c. Can never contradict Quran or Sunnah
7. Conditions of Ijma
a. Consensus between Mujtahids → Independent jurists regarded as ijtihad
b. Consensus must be unanimous in nature
i.
Small minorities negate ijma as well as it establishes a doubt that their view may
be correct
ii.
Some jurists regard an ijma valid even when there is a small minority
iii.
Agreement of the majority is regarded as persuasive by some jurists, however,
not termed as ijma
iv.
Increased the practical value of ijma as it is almost impossible to have all the
scholars on the same page
c. Muslim Ummah → ummah of the Holy Prophet, ummah of an earlier Prophet will not
constitute ijma
d. Single determined period - agreement must be during this period, irrespective of whether
some jurists opposed it subsequently
i.
The element of unanimous agreement can only be true if it is in a determined
period of time
e. After the demise of the Holy Prophet - agreement during the life amounts to sunnah and
not ijma
f. On a rule of law → Hukm shari, the rule must be clear regarding the
prohibition/limitation/approval/void/valid - non-legal matters are excluded from the
domain of ijma
i.
Shafi → role of ijma restricted to religious beliefs and religious practices, e.g.,
number of times a person must pray, fasting, hajj
ii.
Matters on which all muslims are agreed
iii.
Other three schools of sunni islam → role of ijma not so restricted
1. Ijma can be used to arrive at authoritative interpretations of Quran and
Sunnah + questions not answered by Quran and Sunnah
2. Other three schools of Sunni Islam can be said to have a wider scope of
application of Ijma
g. Reliance on Sanad by Mujtahids
i.
Sanad refers to accepted sources of law - Quran or Sunnah
ii.
Could be said that if a particular rule is found in Sanad, then no need to rely on
Ijma, the Sanad itself will be the source of law
h. Other conditions that minority of jurists agree on
i.
Death of Jurists who participated in a particular Ijma
ii.
1. E.g., Hazrat Ali → sale of ummahat al-awlad → they suggest that ijma
cannot be final for the reason that mujtahids are no longer alive
2. Drawback → people will have to wait for many years to benefit from a
particular consensus
Transmission by tawatur → they suggest that mode of transmission of ijma
must be definitive
8. Types of Ijma
a. Ijma Qawli / Explicit Ijma
i.
Mujtahids stating their opinions explicitly and unanimously agreeing on a
particular aspect regarding a legal issue
ii.
Jurists declaring fatwas separately similar in nature at separate times in a certain
period
iii.
Flexible → practically effective as all the Mujtahids may not be in the same place
all at once
iv.
Majority of the jurists agree on the obligatory nature of this
b. Ijma Sukuti / Tacit Ijma
i.
Similar to tacit approval → some mujtahids get to know about a particular
verdict and they remain silent
ii.
Certain conditions need to be satisfied
1. Silence must not carry with itself an element of disagreement
2. Silence extends to and is maintained over a considerable period time
3. Ijtihad must be permitted for such an issue
a. Issues where primary sources are probable (Zanni)
b. In case of qati’i - where ijtihad is not permitted, silence will not
amount to tacit approval
iii.
Majority of the jurists do not agree on the obligatory nature of this and deem this
prohibited
9. Advantages
a. Enhances authority of speculative rules - they become binding one ijma is established on
them
i.
E.g., Solitary Hadith becoming binding, prohibition on unlawful
conjunction/marriage to wife’s relatives
b. Ijma validates authority as well - as the ijma becomes authority in its own right
10. Recognition of Ijma
a. Quran
i.
“If anyone contends with the messenger even after guidance has been plainly
conveyed to him, and follows a path other than that of the believers,we shall
leave him in the path he has chosen, and land him in hell. What an evil
refuge” (4:115)
ii.
“O you who believe, Obey God, and obey the Messenger, and those charged
with authority among you” (4:59)
iii.
“You are the best community that has been raised for mankind. You enjoin
right and forbid evil and you believe in God” (3:109)
b. Hadith
“I asked Allah that my Ummah not agree on an error and He granted it (this
prayer) to me”
ii.
“My people will never agree on an error”
iii.
Ibn Umar reported “Verily Allah will not let my nation agree upon
misguidance. The hand of Allah os over the united community”
11. Issues with Ijma
a. Mu’tazili leader Abraham al-Nazism → unanimity → impractical, mujtahiduns must be
in different places, gathering them on one particular issue might not be
feasible/practical
b. Distinction between mujtahid and non-mujtahid
c. Al-Shafi → confines the role of ijma to obligatory duties only, therefore limited
applicability to modern Shariah law matters
i.
Zahiris and Imam Ahmad ibn Hanbal → consensus of companions alone
ii.
Imam Malik → people of Madinah
iii.
Shi’ah Imamiyyah → agreement of Prophet’s family alone
12. Application
a. Hazrat Abu Bakr’s election to the post of Caliph through the voting process as no
guidance was available as to how a political leader needs to be determined after the
demise of the Holy Prophet
b. Minors, Lunatics, Non-Musilms excluded from participating in Ijma
13. Reform proposals
a. The modern critics of ijma' consider that ijma' according to its classical definition fails to
relate to the search for finding solutions to the problems of the community in modern
times. Ijma` is hence retrospective and too slow a process to accommodate the problems
of social change
b. An early- critique of ijma' was advanced by Shah Wali Allah Dihlawi (d. 1176/1762),
who tried to bring ijma` closer to reality and came out in support of `relativity' in the
concept of ijma
c. Muhammad Iqbal is primarily concerned with the question of how to utilize the potentials
of ijma` in the process of modern statutory legislation. He considers it an important
doctrine, but one which has remained largely theoretical. `It is strange,' Iqbal writes, that
this important notion 'rarely assumed the form of a permanent institution'. He then
suggests that the transfer of the power of ijtihad `from individual representatives of
schools to a Muslim legislative assembly
d. Iqbal's views have, however, been criticized on other grounds. S. M. Yusuf has observed
that Iqbal was mistaken in trying to convert ijma` into a modern legislative institution.
Yusuf argues that ijtihad and ijma' have never been the prerogatives of a political
organization, and any attempt to institutionalize ijma' is bound to alter the nature of ijma`
and defeat its basic purpose.
e. Ahmad Hasan finds some weaknesses In Yusuf's criticism of Iqbal, and observes that
`Dr Yusuf has probably not understood Iqbal's view correctly.' Hasan finds Iqbal's view
to the effect that ijtihad should be exercised collectively instead of being a preserve of the
individual mujtahidun, to be basically sound. `Ijtihad today cannot be exercised in
isolation
i.
Qiyas (Analogy)
1. 4th source of islamic law
2. 2nd secondary source
3. Dependent on human judgment, so non-divine source
4. Refers to an attempt t deduce a rule that can be applied to a case with indirect reference to Quran
and Sunnah provided they both are directly silent on the particular matter
5. Not restricted to legal provisions only unlike Ijma
6. Shafi’i → tried to bridge the divide between ahl al-hadith (the traditionalists) and ra’y
(rationalists)
7. Qiyas also means comparison, with a view to suggesting equality or similarity between two
things. Thus the expression Zayd yuqas ila Khalid fi `aqlihi wa nasabih means that `Zayd
compares with Khalid in intelligence and descent'
8. Historically, Shafi’i is acknowledged as having played a significant role in the emergence of this
hierarchy of sources for Islamic law before the formal development of the classical schools of
Islamic jurisprudence
9. Although qiyas offers considerable potential for creativity and enrichment, it is basically designed
to ensure conformity with the letter and the spirit of the Qur'an and the Sunnah. In this sense, it is
perhaps less than justified to call qiyas one of the sources (masadir) of the Shari'ah; it is rather a
proof (hujjah) or an evidence (dalil) whose primary aim is to ensure consistency between
revelation and reason in the development of the Shari’ah
10. The jurist who resorts to qiyas takes it for granted that the rules of Shari'ah follow certain
objectives (maqasid) which are in harmony with reason
11. Examples:
a. The Prophet is reported to have said, 'The killer shall not inherit [from his victim]' By
analogy this ruling is extended to bequests, which would mean that the killer cannot
benefit from the will of his victim either
b. The Qur'an (al-Jumu'ah, 62:9) forbids selling or buying goods after the last call for
Friday prayer until the end of the prayer. By analogy this prohibition is extended to all
kinds of transactions, since the effective cause, that is, diversion from prayer, is common
to all
12. Link b/w Ijma & Qiyas
a. Some opponents of Al-Shafi such as Ibn Al-Muqaffa, Wasil b.Ata put Ijma in the last
category and put Qiyas above it after the Sunnah.
b. From a purely theoretical point of view also the interaction of Qiyas and Ijma is
absolutely essential. If there were no Qiyas how can Ijma be conceivable? For Ijma' can
only be arrived at through the difference of opinion as a result of the exercise of Qiyas by
several person
c. Qjyas (Ijtihad) and Ijma' are two complementary factors of a continuous process. Since
Ijma is an agreed and accepted opinion, it means that Ijma' carries more weight and force
than other unaccepted individual opinions based on Qiyas. That's probably why al-Shafi’i
and late jurists gave Ijma priority over Qiyas.
d. Qiyas is the systematic form of ra'y (considered opinion) and is based on the Qur'an. and
the Sunnah. Ijma is nothing but individual opinion, however it receives the universal
acceptance of the Community. In a word, the Qur'an, the Sunnah,
e. Qiyas and Ijma' are interlinked with each other; the same spirit runs through these
sources for which the final authority is the Qur'an. It is clear, therefore, that the Qiyas and
Ijma' are instruments or agencies for legislation on new problems for whose solution
directs guidance from the Qur'an and the Sunnah is not available.
f. The authenticity of these auxiliary sources shall be determined only by the degree of their
consonance with the other two original and unchallenged sources of law.
13. Conditions pertaining to the Original Case (Asl)
a. Asl has two meanings. Firstly, it refers to the source, such as the Qur'an or the Sunnah,
which reveals a particular ruling. The second meaning of asl is the subject-matter of that
ruling
b. Example: the prohibition of wine in the Qur'an, the asl is both the Qur'an, which is the
source, and wine, which is the original case or the subject-matter of the prohibition
c. The ulema are in unanimous agreement that the Qur'an and the Sunnah constitute the
sources, or the asl, of qiyas. There is, however, some disagreement as to whether ijma
constitutes a valid asl for qiyas. Those who dispute the validity of ijma' as a basis of
analogical deduction argue that the rules of consensus do not require that there should be
a basis (sanad) for ijma. ijma' does not always explain its own justification or rationale
d. Qiyas can only be attempted when there is a hukm available in the sources. In the event
where no hukm can be found in any of the three sources regarding a case, and its legality
is determined with reference to a general maxim such as original freedom from liability
(albara'ah al-asliyyah), no hukm could be said to exist
e. Hukm must not be confined to an exceptional situation or to a particular state of affairs.
Qiyas is essentially designed to extend the normal, not the exceptional, rules of the law
14. The New Case (Far’)
a. The far' is an incident or a case whose ruling is sought by recourse to analogy. The far`
must fulfill the following three conditions:
i.
The new case must not be covered by the text or ijma`. For in the presence of a
ruling in these sources, there will be no need for a recourse to qiyas. However,
some Hanafi and Maliki jurists have at times resorted to qiyas even in cases
where a ruling could be found in the sources
ii.
The effective cause of analogy must be applicable to the new case in the same
way as to the original case. Should there be no uniformity, or substantial equality
between them, the analogy is technically called qiyas ma'al-fariq, or `qiyas with a
discrepancy', which is invalid
iii.
The application of qiyas to a new case must not result in altering the law of the
text, for this would mean overruling the text by means of qiyas which is ultra
vires.
15. The Effective Clause (‘Illah)
a. This is perhaps the most important of all the requirements of qiyas. `Illah has been
variously defined by the ulema of usul. According to the majority, it is an attribute of the
asl which is constant and evident and bears a proper (munasib) relationship to the law of
the text (hukm)
b. According to the majority of ulema, the `illah must be a constant attribute (mundabit)
which is applicable to all cases without being affected by differences of persons, time,
place and circumstances. The Malikis and the Hanbalis, however, do not agree to this
requirement as they maintain that the `illah need not be constant, and that it is sufficient if
the 'illah bears a proper or reasonable relationship to the hukm
c. The effective cause on which analogy is based must also be evident (zahir). Hidden
phenomena such as intention, goodwill, consent, etc., which are not clearly ascertainable
may not constitute the `illah of analogy.
d. The third condition of 'illah is that it must be a proper attribute (al-wasf al-munasib) in
that it bears a proper and reasonable relationship to the law of the text (hukm). This
relationship is munasib when it serves to achieve the objective (hikmah) of the Lawgiver,
which is to benefit the people and to protect them against harm
e. The `illah must be 'transient' (muta'addi), that is, an objective quality which is
transferable to other cases. For analogy cannot be constructed on a 'illah which is
confined to the original case only
f. The effective cause must not be an attribute which runs counter to, or seeks to alter, the
law of the text
16. Varieties of Qiyas
a. From the viewpoint of the strength or weakness of the 'illah, the Shafi'i jurists have
divided qiyas into three types:
i.
'Analogy of the Superior' (qiyas al-awla). The effective cause in this qiyas is
more evident in the new case than the original case, which is why it is called
qiyas al-awla.
ii.
'Analogy of Equals' (qiyas al-musawi). The 'illah in this type of qiyas is equally
effective in both the new and the original cases, as is the ruling which is deduced
by analogy. W
iii.
'Analogy of the Inferior' (qiyas al-adna). The effective cause in this form of
qiyas is less clearly effective in the new case than the original case. Hence it is
not quite so obvious whether the new case falls under the same ruling which
applies to the original case.
17. Qiyas has been further divided into two types, namely 'obvious analogy' (qiyas jali) and `hidden
analogy' (qiyas khafi). This is mainly a Hanafi division. In the former, the equation between the
asl and far` is obvious and the discrepancy between them is removed by clear evidence.
18. Proof of Qiyas
a. Notwithstanding the absence of a clear authority for qiyas in the Qur'an, the ulema of the
four Sunni schools and the Zaydi Shi'ah have validated qiyas and have quoted several
Qur'anic passages in support of their views.
b. Thus, a reference is made to sura al-Nisa' (4:59) which reads, in an address to the
believers: `should you dispute over something, refer it to God and to the Messenger, if
you do believe in God’.
c. The proponents of qiyas have reasoned that a dispute can only be referred to God and to
the Prophet by following the signs and indications that we find in the Qur'an and Sunnah.
One way of achieving this is to identify the rationale of the ahkam and apply them to
disputed matters, and this is precisely what qiyas is all about
d. The Qur'an provides clear indications which call for recourse to qiyas. In the absence of a
clear ruling in the text, qiyas must still be utilised as a means of achieving the general
objectives of the Lawgiver
e. There are two types of indication in the Sunnah to which the proponents of qiyas have
referred:
i.
Qiyas is a form of ijtihad, which is expressly validated in the Hadith of Mu`adh
b. Jabal. It is reported that the Prophet asked Mu`adh upon the latter's departure
as judge to the Yemen, questions in answer to which Mu`adh told the Prophet
that he would resort to his own ijtihad in the event that he failed to find guidance
in the Qur'an and the Sunnah, and the Prophet was pleased with this reply.
ii.
The Sunnah provides evidence that the Prophet resorted to analogical reasoning
on occasions when he did not receive a revelation on a particular matter.
19. The Argument against Qiyas
a. This has been advanced mainly by the Zahiri school, and some Mu'tazilah, including
their leader, Ibrahim al-Nazzam. The leading Zahiri jurist, Ibn Hazm, is the most
outspoken against qiyas. The main points:
i.
Commands and prohibitions are determined by the clear authority of the Qur'an,
the Sunnah, or ijma', in whose absence nothing else can determine an obligatory
or a prohibitory injunction, and the matter would automatically fall under the
category of mubah. There is thus no room for analogy in the determination of the
ahkam
b. The ahkam of the Lawgiver are all-inclusive and provide complete guidance for all
events, our only duty is to discover and implement them. To consider qiyas as an
additional proof would be tantamount to an acknowledgement that the Qur'an fails to
provide complete guidance. (Ibn Hazm)
c. Qiyas therefore rests on conjecture, which must not be allowed to form the basis of a
legal ruling.
d. Ibn Hazm holds that qiyas are clearly forbidden in the Qur’an. Thus we read in Surah
al-Hujurat (49:1): 'O you believers! Do not press forward before God and His
Messenger, and fear God [...]', which means that the believers must avoid legislating
on matters on which the lawgiver has chosen, to remain silent.’
Further Sources and Principles of Islamic Law
1. Urf (Custom)
2. Maslahah (Welfare)
3. Darurah (Necessity)
4. Ijtihad (Individual Reasoning)
a. Individual reasoning could be exercised in order to find legal solutions for problems not
directly addressed by Quran, Sunnah and Ijma
b. Ijtihad is beneficial in areas where even Qiyas fails to provide a guidance
c. Operates in a way that the jurist exercises his own mental faculties to find a solution to
the case from the totality of law
d. Defined as an opinion formed by somebody learned in the law based on his
comprehensive understanding of the main sources
e. Only Mujtahids can perform Ijtihad
f. Ijtihad is the most important source of Islamic law next to the Qur'an and the Sunnah.
The main difference between ijtihad and the revealed sources of the Shari'ah lies in the
fact that ijtihad is a continuous process of development whereas divine revelation and
prophetic legislation discontinued upon the demise of the Prophet. In this sense, ijtihad
continues to be the main instrument of interpreting the divine message and relating it to
the changing conditions of the Muslim community in its aspirations to attain justice,
salvation and truth
g. Ijtihad essentially consists of an inference (istinbat) that amounts to a probability (zann),
thereby excluding the extraction of a ruling from a clear text. It also excludes the
discovery of a hukm by asking a learned person or by consulting the relevant literature
without the exercise of one's own opinion and judgmen
h. Ijtihad is concerned with the practical rules of Shari'ah which usually regulate the
conduct of those to whom they apply (i.e. the mukallaf). This would preclude from the
scope of ijtihad purely intellectual (`aqli) and customary (urfi) issues, or matters that are
perceptible to the senses (hissi) and do not involve the inference of a hukm shar'i from
the evidence present in the source
i. Rudolph Peters → ijtihad is a derivation of law on a legal matter through one’s own
effort
i.
Taqlid is the opposite of Ijtihad which he regards as acceptance of a legal
principle without figuring out the foundations of it
j. Watt categorizes Ijtihad as operational on two distinct levels;
i.
Basic Level → dealing with general matters in religion/school of law
ii.
Particular level → dealing with specific matters within each particular
religion/school of law
k. Confusion regarding definition of Ijtihad
i.
The Asiatic Society of Bngal defined as “exerting one’s own effort in order to
derive from the basis of the law an opinion concerning a legal matter”
ii.
Edward Sell. later defined it as “attaining to certain degree of authority in
searching into the principles of jurisprudence”
iii.
Dr. Muhammad Iqbal → “exert with a view to form an independent judgment
on a legal question”
iv.
Shafi’i → disciplined judgment of individual jurists
l. Conditions:
i.
The mujtahid must be a Muslim and a competent person of sound mind who has
attained a level of intellectual competence which enables him to form an
independent judgment. In his capacity as a successor to the Prophet, the mujtahid
performs a religious duty, and his verdict is a proof (hujjah) to those who follow
him; he must therefore be a Muslim, and be knowledgeable in the various
disciplines of religious learning
ii.
The earliest complete account of the qualifications of a mujtahid is given in Abu'
Husay al-Basri’:
iii.
Knowledge of Arabic to the extent that enables the scholar to enjoy a correct
understanding of the Qur'an and the Sunnah + must also be knowledgeable in the
Qur'an and the Sunnah, the Makki and the Madinese contents of the Qur'an, the
occasions of its revelation (asbab al-nuzul) and the incidences of abrogation
therein. the mujtahid must possess an adequate knowledge of the Sunnah,
especially that part of it which relates to the subject of his ijtihad.
iv.
It would be rare, al-Shawkani observes, for anyone who has attained the rank of a
mujtahid not to be aware of the issues on which there is a conclusive ijma`. By
implication, the mujtahid must also be aware of the opposing views, as it is said,
'the most learned of people is also one who is most knowledgeable of the
differences among people’
v.
Furthermore, the mujtahid should know the objectives (maqasid) of the Shari'ah,
which consist of the masalih (considerations of public interest). The most
important masalih are those which the Lawgiver has Himself identified and
which must be given priority over others. Thus the protection of the `Five
Principles', namely of his religion, intellect, lineage and property, are the
recognised objectives of the Lawgiver. These are the essentials (daruriyyat) of
the masalih
vi.
Al-Shatibi summarizes all the foregoing requirements of ijtihad under two main
headings, one of which is the adequate grasp of the objectives of the Shari'ah,
while the other is the knowledge of the sources and the methods of deduction.
The first of these is fundamental, and the second serves as an instrument of
achieving the first
vii.
And finally, the mujtahid must be an upright (`adil) person who refrains from
committing sins and whose judgment the people can trust. His sincerity must be
beyond question and untainted with self seeking interests. For ijtihad is a sacred
trust, and anyone who is tainted with heresy and self indulgence is unworthy of it
m. Divisibility of Ijtihad
i.
Ijtihad, in other words, is indivisible, and we cannot say that a person is a
mujtahid in the area of matrimonial law and an imitator (muqallid) in regard to
devotional matters (`ibadat) or vice versa. To say this would be tantamount to a
contradiction in terms, as ijtihad and taqlid cannot be combined in one and the
same person
ii.
The view that ijtihad is divisible is supported by a number of prominent ulema,
including Abu'l-Husayn al-Basri, al-Ghazali, Ibn al-Humam, Ibn
Taymiyyah, his disciple Ibn al-Qayyim and al-Shawkani. AlGhazali thus
observes that a person may be particularly learned in qiyas and be able to practice
ijtihad in the form of analogy even if he is not an expert on Hadith
iii.
Divisibility of ijtihad would thus seem to be in greater harmony with the
conditions of research in modern times. By way of a postscript, one might also
remark that the classification of mujtahids into various ranks, such as mujtahids
in a particular school or on particular issues, takes for granted the idea that ijtihad
is divisible.
n. Procedure of Ijtihad
i.
Since ijtihad occurs in a variety of forms, such as qiyas, istihsan, maslahah
mursalah, and so on, each of these is regulated by its own rules. There is, in other
words, no uniform procedure for ijtihad as such.
ii.
The ulema have nevertheless suggested that in practicing ijtihad, the jurist must
first of all look at the nusus of the Qur'an and the Hadith, which must be given
priority over all other evidences. Should there be no nass on the matter, then he
may resort to the manifest text (zahir) of the Qur'an and Hadith and interpret it
while applying the rules pertaining to the general (`amm) and specific (khass),
the absolute and the qualified, and so forth, as the case may be
iii.
Ijtihad may occur in any of the following four varieties.
iv.
form of a juridical analogy (qiyas) which is founded on an effective cause
(`illah).
v.
a probability (zann) without the presence of any `illah, such as practicing a ijtihad
in regard to ascertaining the time of salah or the direction of the qiblah.
vi.
interpretation of the source materials and the deduction of ahkam from existing
evidence. This type of ijtihad is called ijtihad bayani, or 'explanatory ijtihad',
which takes priority over 'analogical ijtihad', or ijtihad qiyas.s
vii.
ijtihad istislahi, is based on maslahah and seeks to deduce the ahkam in
pursuance of the spirit and purpose of the Shari'ah, which may take the form of
istislah, juristic preference (istihsan), the obstruction of means (sadd al-dhara'i'),
or some other technique. Imam Shafi`i accepts only the first type, namely
analogical ijtihad, but for the majority of ulema, ijtihad is not confined to qiyas
and may take the form of any of the foregoing variety
o. “The Gates of Ijtihad”
i.
The absence of unanimously agreed definition of Ijtihad leads to confusion in
whether it could be exercised today or not, the different versions of definitions
provide different accounts
ii.
Sunni Islamic Law → Gates Closed, for the reason that they believe all main
principles have been completed and perfected by the 10th century
iii.
Shi’ah Jurisprudence → Gates not closed yet, the 12th Imam has been a
source of reinterpretation of existing concepts and fundamental changes
iv.
Modernists - Gates of Ijtihad Closed
1. Muslim Scholars closed the door of ijtihad by virtue of an Ijma
2. Ostrorog → Gates closed, referred this to the Muhammadan
Jurisprudence
3. H.A.R Gibb → the development in theology and law has resulted the
gates of ijtihad being narrower and eventually closed. Contrast his
following views:
a. Claim of ijtihad would be worthless unless supported by Ijma
b. Ijtihad to be in line with Ijma to be a valid exercise of
independent judgment
v.
vi.
4. L.E. Brown + Edwin Calvery → Gates closed
a. Analysis → western scholars suggest that the gates of ijtihad are
closed
5. Joseph Schacht → Takes a nuanced view and suggests that the closure
of the gates of ijtihad resulted in it being replaced by Taqlid unquestioning acceptance of doctrines of established schools and
authorities
a. The view is reaffirmed and adopted by Khadduri
6. Tritton although suggests that the gates are closed but does not elaborate
why or how they’re closed
a. Suggests Taqlid might result in a similar outcome as Ijtihad and
therefore might be wrong
7. Liesbeny → closure of gates is assumed as no specification regarding
who closed it
8. N.J Coulson→ Gates closed in early 10th century
9. Fazlur Rehman → Ijithad ousted by Ijma
Gates Not Closed
1. W.B. Hallaq → The gates of ijtihad are not closed
a. Significance of ijtihad is exemplified in exclusion of Zahiri
School of Thought from the Sunni Jurisprudence for the reason
that they believed the gates of ijtihad are closed
b. Ijtihad amounts to a religious duty of all qualified jurists.
Consequently, duties cannot be abandoned
c. Ijtihad used in development of law
d. Opening/closure of the gate relies on existence/extinction of
Mujtahid and an Ijma/consensus officially closing the gates
i.
Since no consensus, gates not closed
2. Abdul Rahim
a. Nothing prevents recognition of mujtahids in Sunni Islam
b. Hanbalis → No time period exists where mujtahids are absent
c. Ijtihad still possible
i.
Moderate qualification required of mujtahids which is
not difficult to achieve in modern times
ii.
Ijma backs the possibility of mujtahids in every age,
“Then ask those who have knowledge, if you
yourselves do not know” (16:43)
iii.
Limiting ijma/ijtihad is in contravention with the basic
principles of Sunni Jurisprudence
3. Muhammad Iqbal → Ijtihad is practiced in Shi’ah schools as
exemplified:
a. Ibn Taimiyyah and Suyuti upheld the privileges of ijtihad
b. Use of ijtihad in Turkey in 1930s
Middle Ground
1. Exemplified → technical account of three degrees of Ijtihad by Edward
Sell
2. Muhammad Ali → restrictive practices, confusion regarding the gates
subconsciously projects limitations to its exercise
3. Gokalp → Ijtihad permissible if urf (Custom) results in nass (clear legal
injunction)
4. Maulana Mufti Muhammad Shafti → exercise of ijtihad in cases of
new impression where ijma does not provide guidance
5. Watt → restriction, not closure
6. Weiss → Shift to Taqlid must be regarded as an accident
p. Application
i.
Egyptian Law of Testamentary Dispositions 1946 → relied on (2:180) which
suggested that Muslims must make bequests in favor of their nearest kinsmen
when they are approaching death
1. Egyptian reformers exercised ijtihad and included orphaned
grandchildren as the only heirs entitled to such an obligatory bequest
ii.
Prohibiting polygyny - exercise of legislative ijtihad
1. Tunisian Law of Personal Status 1956 → basis of reforms was Quran
itself
2. (4:3) → man may marry polygynous-ly only if he is able to provide for
each wife equally. Contrast this with (4:129) which suggests that man
will never be able to treat all his wives equally
3. Exercise of ijtihad → rejected the idea that verses mean equality in
terms of maintenance, housing and spending time and held absolute
prohibition on polygyny
iii.
Khurshid Bibi v Muhammad Amin → The SCP held a new interpretation of
the verse on Khula and held dissolution of marriage on grounds of Khula valid
without husband’s consent
iv.
MD Hefzur Rehman v Shamsun Nahar Begum → Mr Justice Rabbani reinterpreted the Quranic verses to mean that a woman was entitled to receive
maintenance as long as she reclaimed a divorcee. Earlier interpretation meant that
maintenance will only be until the period of iddah
5. Istihsan (juristic Preference)
a. Developed by Hanafi school of law and recognised as a source of islamic law
b. Mostly confined to Hanafis
c. Malikis developed a similar principle called istislah or maslahah
d. Caters to situations where a legal rule derived from Qiyas leads to unjust outcomes or
may be in contention with another established legal principle
6. Istishab (Presumption of Continuity)
a. Source of law/presumption of evidence
b. Prominent in Shi’ah doctrine
c. Suggests that a certain state of affairs continues to be regarded as persisting s long as
there is no proof that that state of affairs has come to an end
d. Example → Distribution of estate of a mafqud, i.e., person who has disappeared
i.
Shafi’i critique → no evidence of this person’s death and so the estate cannot
be distributed to his heirs
ii.
Therefore, Istishab acts as a shield and protects the estate of the disappeared as
he is legally presumed to be alive until proven that he is dead
iii.
Further holds that the disappeared will have the right to get from someone else’s
estate who died during his disappearance
iv.
Sunni Schools → take a differing view. While agree to the extent that his rights
will be protected, they suggest no new rights will be accrued in terms of
inheriting
Pre-Islamic Law
1. Pre-Islamic Law + External Legal regimes has shaped Islamic Law
2. Customs during the jahiliyyah influenced the advent of succession laws primarily in the Sunni
Schools
3. Obligatory dower paid to the wife → traced back to ancient practice of bride price
4. Principles of Civil contract stemmed from Roman Byzantines
5. Administration of bazaars and markets modeled on Roman Law
6. Sasanian rulers of Persia led to concepts of equality in marriage particularly adopted by the
Hanafi school of law
Development of classical Schools of Islamic Jurisprudence
1. Sunni Schools (All recognise each other as mutually orthodox)
a. Hanafi
i.
Founded by Imam Abu Hanifa
ii.
Spread to Syria, Afghanistan, Turkish, Central Asia and South Asia
b. Maliki
i.
Dominant in North Africa
ii.
Algeria, Tunisia, Libya, Central and Western Africa, Eastern Arabian Coasts
c. Shafi’i
i.
Eastern Africa, South Arabia, Eastern India, South East Asia
d. Hanbali
i.
KSA, UAE, Qatar
2. Shi’ah (Faction) Schools
a. Ithna Ashari (The Twelvers)
i.
Iran, Iraq, Bahrain, Minorities in Yemen, Lebanon, Pakistan
ii.
Differences with Sunni Islamic Jurisprudence
iii.
Stemmed from political divisions in the islamic community after the demise of
the Holy Prophet
iv.
Role of Imam is central - descendant of Hazrat Ali, regarded as leader by divine
right
No Imams after 874 CE, ending the lineage on the 12th Imam
v.
b. Ismaili
i.
Imam → close link to God
ii.
Unbroken chain of Imams from Hazrat Ali to the present Agha Khan
c. Zaydi
i.
Minority
ii.
Imam → Ordinary human being
3. Development of Law
a. 3rd century → by the end, islamic schools had already been established and the law
became stagnant. All that was left was its interpretation
b. Ibn Khaldun → Laws/Texts/Customs had been established and were supposed to hand
down the traditions for each individual in accordance with their tradition/school
c. 19th century → Ottoman empire, influenced from the Tanzimat reforms sought to
modernize the laws along the European pattern
i.
Introduced Codes of Western Inspiration
ii.
Commercial codes
iii.
Martine codes based on the French Code
iv.
Penal Code
d. Industrial revolution underway
e. Only available law for commercial matters → Shari’ah law
f. Enactment of Mejella in 1876 → civil law of contract
i.
Derived from Hanafi school
ii.
First codification of Islamic contract law
g. Little development in the area of family law
i.
1915 → Putative reforms
ii.
Led to enactment of judicial decree from courts in accordance with Shafi’i
iii.
Ottoman Law of Family Rights
h. Laws of Personal Status, e.g., UAE Law 2002 and Qatari Law 2006
i.
Aim → codify laws and make them certain/accessible
ii.
In response to the aim, majority of the codes set a specific age for marriage,
restrictions on polygyny/succession
iii.
E.g., 1939 Dissolution of Muslim Marriages Act → Hanafi women given the
right to divorce - based on the Maliki doctrine
iv.
Statutory reforms in Pakistan and Bangladesh → Muslim Family Laws
Ordinance 1962
i. Secularisation of Turkey - Kamal Ataturk introduced reforms by the help of ulemas in
the area of family law beyond those introduced by Ottoman Law of Family Rights 1917
i.
1926 → adopted a Swiss Civil Code with some amendments when ulemas failed
to establish new reforms
j. New codes adopted after the end of second world war
Egyptian Code 1949 drafted by Adel Razzak Sanhuri establishing shari’ah as a
source of law
k. Modern Islamic Legal Theory
i.
3 imperatives:
1. Need for greater unity
2. Need for coherence
3. Need for efficiency
ii.
New Approaches introduced:
1. Neo-Ijtihad
2. Religious Utilitarianism
3. Religious Liberalism
4. Moderation and Balance
iii.
1st attempt → Egyptian Judge/Jurist Muhammad Abduh
i.
Interpretation in Islamic Law: The Theory of Ijtihad – Bernard Weiss
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Holy law is not given to man ready-made, to be passively received and applied; rather, it
is to actively be constructed on the basis of those sacred texts which are its acknowledged
sources. (Holy Law = aggregate of ahkam and shariah).
Islamic metaphor = rules themselves are branches (furu) or “fruit”, which grow out of the
root (usul) that, from the sources.
Sacred trust = sources of law = not the law itself.
The process of extracting or deriving legal rules from the sources of Law is termed, with
reference to its character as a human activity, ijtihad.
Ijtihad = ‘endeavour’ or ‘self-exertion’.
Taqlid = imitation = acceptance of a rule, not on the basis of evidence drawn directly from
the sources, but on the authority of other jurists.
Ijtihad roughly corresponds to the western jurisprudential concept of interpretation.
o They are exactly corresponding, however, the greater part of the activities entailed
in ijtihad are indeed interpretative activities. Arabic terms equivalent to
interpretation i.e., tafsir and tawil, are more specialized than that of legal
interpretation in the broad sense intended during ijtihad.
Strictly speaking, it is not law as such which is interpreted but rather the sources of law.
Law is the result of juristic interpretation of sources.
Jurists in performing ijtihad do not create law but rather discover it from the sources of
law.
The substantive sources from which all rules of law in Islam must be derived are the Quran,
the Sunnah, and the Consensus of the Muslim community. (Quran + Sunnah = textual in
nature = nass). Consensus may also be essentially textual, but it is not ranked as nass. It
would appear that interpretation of Islamic law is exclusively text oriented.
Islamic law = ‘jurists’ law = only jurists are in a position to discover the law of God and
state it authoritatively.
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Roman law v/s Islamic law = duty to expound law rests on specialists and the bulk of law
was the outcome of juristic interpretation. Difference lies in the existence of law-making
in Roman Law. Muslim jurists are bound by sources while Roman jurists acted on intuition.
A Muslim jurist does not proclaim the dictates of his own intuition. It is true that western
scholarship has made much of the role of ra’y, or individual discretion, in historical
development of Islamic Law. There is good reason to believe that the term fiqh, which is
usually rendered as “jurisprudence”, originally was used much in the same sense as ra’y.
There is no doubt that a great deal of the positive law of Islam stems from this early ra’y.
Essential characteristic of Islamic jurisprudence = relatively unrestricted, discretionary
ra’y was set aside in favour of a more constrained, text-oriented approach to the exposition
of law.
Istihsan + istislah = originally represented independent human judgement of expediency
or public utility; Islamicists customarily regard them as vestiges of ra’y which survived in
classical theory. Some jurists claimed that Istihsan was nothing more than the repudiation
of one rule based on analogy in favour of the adoption of another based on a more subtle –
but ultimately more plausible- analogy. Category of tarjih = the acceptance of one of two
conflicting rules as ‘weightier’ than the other. The concept of public utility (maslaha) was
placed eventually among the purposes (maqasid) of the Law, to be discovered, not through
a free exercise of reason or intuition, but as a result of inductive exegesis of the texts.
Istihsan and istislah turn out to be methods of interpretation rather than substantive sources
of law.
The authority of jurist stems from his ijtihad = his authority is derivative in nature
completely on the authority of God.
Declarations of jurists, authoritative as they may be, are not characterized by absolute
definitiveness. Muslim jurisprudence insists very strongly that the results of ijtihad be
distinguished from ilm (knowledge) and be characterized as zann (opinion). This is
appropriate because when one interprets the law, the interpretation is nothing more than
the interpreter’s opinion on what the law is.
Ilm (knowledge) = certainty. Opinion (zann) = tentative, uncertain, and subject to doubt.
For Sunni Muslims, knowledge of rules of law is not anchored in the human intellect. For
Sunnis, revelation is the sole source of ethical-legal values; human reason is extraneous to
knowledge of such values. Legal knowledge can only be acquired pursuant to the
ascertainment of the existence of God, the reality of revelation, and the authenticity and
meaning of those texts in which revelation is contained. Thus, legal knowledge depends
upon the results of theological reflection and textual criticism and interpretation.
Sunnis believe that God has not made knowledge the be-all and end-all of man’s existence;
rather, he has given men the possibility of formulating sound, acceptable opinion through
the exercise of his utmost energies. If man cannot achieve absolute knowledge of God’s
commandments, he may rely on his own learned judgement regarding what God requires.
Opinion, in effect, distinguishes the eternal Law of God from jurists' law. With every
opinion of a jurist, the possibility of error must be posited, and in such instance the Law of
God becomes clearly distinguishable in substance from the law conceived by the jurist.
Where error is possible within the sphere of law, the jurist's opinion is decisive. It makes
no practical difference whether the rule advanced by a jurist happens to coincide perfectly
with the ideal (but unknown) rule ordained by God; his opinion has the practical force of
law. Thus, Sunni Islam posits a large human element in the formation of law, and perhaps
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there is even some basis within Sunni theory for the idea of a positive law. It is the law
emanating from the opinions of jurists which actually governs the affairs of the mundane
world.
When the opinion of a jurist is translated into a court decision, it becomes final and
irrevocable. If the judge himself is a jurist qualified to engage in ijtihad, then the decision
will embody his own opinion; if he is not, it will embody the opinion of the jurist he has
consulted.
In principle, the sole determinant of what is to be applied in a court decision is the
considered opinion of a qualified jurist, his ijtihad. The finality accorded to court decisions
does not mean that they are regarded as a precise statement of what the law is. The ideal
law of God continues to be the Law. What may be properly applied in courts, in cases in
which the Law of God cannot be known with absolute certainty, is the approximate or
probable Law of God, as determined through ijtihad.
Juristic opinions in matter if law must be objective rather than subjective. Insofar as
subjective factors enter into juristic deliberations, the results are to be wholly rejected, for
juristic thinking in such case constitutes innovation (bid’a) not opinion. The objective basis
of opinions is the sacred text. All opinions must be built upon evidence (dalil) and all
evidence is deemed to be found in revelation. There is a variation in juristic opinion owing
to the ambiguities and inconsistencies in the evidence itself.
Sayf-al-Din al-Amidi: ijtihad = the “total expenditure of effort in the search for an opinion
as to any legal rule in such a manner that the individual senses (within himself) an inability
to expend further effort”. If a jurist does not devote his complete energies in his search and
does not discover evidence he was quite capable of discovering then the opinion is void.
Whether the jurist did indeed completely expend his energies can be verified by the jurist
alone and this is determined essentially by the jurist’s conscience.
o One who knows himself to be capable of independent interpretation of the sources
is forbidden to resort to taqlid.
Classical theory presumes levels or ranks of ijtihad.
o Ijtihad directed at particular questions of law.
o Ijtihad confined solely to the limits of one’s particular school.
o Absolute ijtihad exemplified by the founders of the great schools.
If every man were a mujtahid (practitioner of ijtihad), there would be no law in the ordinary
sense: every man would be a law unto himself. The implications which this would have for
society can hardly be comprehended. Therefore, it is in the interest of social stability that
not all choose to acquire the qualifications which are prerequisites of ijtihad. Those who
do must decide, through introspection, how far they will pursue their ijtihad.
Ijtihad
and
Taqlid
Ijtihād and taqlid are two indispensable principles of Islamic law. These principles are understood
from being placed in contrast with one another. However, the majority of the focus, especially in
the modern era, is spent on ijtihad. In fact, taqlid is often viewed in a negative light. That should
not always be the case. The following … will briefly review the importance of these two principles
by placing them in that contrast and state why they are both indispensable.
Understanding Ijtihad
Al-Amidi defines ijtihād from the perspective of sparing no effort or time through one’s quest to
discover or interpret the true meaning of Shariah law. Basically, a scholar should leave no stone
unturned in their pursuit of legal knowledge, reasoning, and understanding. Al-Shāfiʿī’s definition
of ijtihād is that of analogy and reflection. In this light ijtihad is not just about the effort of one’s
pursuit, but also about a person’s reflection on what Shariah law means based on those reflections.
As such, ijtihad is really only applicable in instances where the primary sources of Islamic law are
in doubt. If a law is qat‘ī or definitive than ijtihad would not apply. There are four main instances
or levels of ijtihad. These include the al-ijtihad al-mutlaq al-mustaqil which are the absolute and
independent Ijtihad that was conudected [conducted] by the four founders of the Sunni schools of
law. Then there is al-ijtihad al-mutlaq al-muntassab which is Ijtihad that is affiliated with schools
of law such as those by Abu Yusuf or Muhammad al-Shaybani in the Hanafi school. Then there is
al-ijtihad fi al-madhhab which is Ijtihad conducted by a school of law itself. And finally, al-istinbat
ft ba'dhilmassail faqat meaning the development of a specific point or instance of law for one
school. With that understanding, it becomes clearer that ijtihad is typically reserved for very good
or renowned legal scholars called Mujtahids. To that end, Sunni law typical held the position that
Islamic legal scholarship / interpretation ended by the 10th century due to the Mujtahids having
clearly indicated any possible interpretation of the law. This is knows [sic] as the ‘gates closing’
argument. Nevertheless, modern scholars have began [sic] to move away from this idea of the
gates being closed. Modern instances of ijtihad legislation/rulings included the Egyptian Law of
Testamentary Dispositions of 1946, the Supreme Court of Pakistan’s decision in Khurshid Bibi v
Muhammed Amin PLD 1967 SC 97, Md Hefzur Rahman v Shamsun Nahar Begum 15 BLD (1995).
Taking the Pakistani Supreme Court decision as an example, the court developed a new
interpretation of the khul to be able to grant its own judicial khul. Ijtihad is important because it
fills in the blanks when the primary sources of law are not definitive or explicit enough. This also
leads to the idea of the Taqlid.
Understanding Taqlid (or Taqleed)
Many individuals define Taqlid as blinding following someone else. That can be a literal
translation of the word. However, that is not correct for legal purposes/reasoning. Rather, Taqlid
implies that a person is unable to extract Islamic law from the primary sources all on their own
due to deficiencies in one’s own abilities. This does not mean that Taqlid implies a person is dumb
or inferior to another. Instead, Taqlid implies that some people are simply not involved enough
in/or do(es) not possess the requisite knowledge to make informed decisions on legal meanings /
interpretations. When this is the case people can follow the person or people who do have these
abilities. It is important to understand that being, acting, or performing Taqlid is not a requirement
of the Islamic faith. In fact, if capable, people should pursue their own scholarly understanding of
legal reasonings on their own. People should become their own form of Mujtahids. However, not
everyone has that option or ability. Thus, to perform ihtiyat (or to take caution) a person can/should
follow the guidance of another who can properly interpret legal reasoning/meaning. The Qur’an
does make Taqlid clear. In the Surah Al-Anbiyah, Verse 7 it states:
‘So then ask the people of the reminder if you do not have any knowledge.’
In the Surah Al-Nahl, Verses 43 it also states:
‘And we did not send any Apostle before you (O’ Muhammad) except that they too were but
(mortal) men to whom We granted inspiration: if you realize this not ask of those who possess the
Message. (We sent them) with Clear Signs and Books of prophecies; and We have sent down unto
you (also) the Message; that you may explain clearly to men what is sent for them so that maybe
they make ponder upon this.’ Here, the Qur’an indicates that people should follow others if you
do not have any knowledge yourself. Further, the prophet and his rightful successors (The 12
A’immah) are placed in authority above others to guide them with their knowledge. This is an
essential idea of the Taqlid. Even though it is not a requirement to follow, you must follow if you
are not able to do it on your own.
Why They Are Both Indispensable
Muslim people must believe and act on the fundamental and essential nature of their faith.
However, they are given the choice to either determine and understand law with their own
capabilities or to follow those who already have. However, if a person does not have the
capabilities to determine the meaning of laws on their own, then they must follow someone who
can. This is a requirement of the Muslim’s religious obligation to him/herself and family.