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Saturday, September 02, 2006

Sources of Islamic Law

Islam has given the most comprehensive legal system to mankind. Islamic law covers all aspects of life. Islam has its own personal, civil, criminal, mercantile, evidence, constitutional and international law.

Islamic law has been defined as the body of rules of conduct revealed by Allah (SWT) to His Prophet Muhammad (peace be upon him) whereby the people are directed to lead their life in this world. Islamic law has, therefore, not been given by any ruler. It is given by Allah. Islamic law remains valid whether recognised by the State or not.

The basic source of Islamic law is Divine Revelation. This has been given to mankind by the Prophet Muhammad (peace be upon him) in two forms. One is the direct word of Allah (SWT), the Quran and the other is the Sunnah or the teachings of the Prophet (p.b.u.h.). The Prophet (p.b.u.h.) always acted according to the instructions of Allah (SWT).

Friday, September 01, 2006

The Quran

The Quran is the primary source containing all the fundamental directives and instructions of Allah. Herein are to be found not only the directives relating to individual conduct but also the principles relating to all the aspects of social and cultural life of human being.

The Quran is the last and complete edition of Divine Guidance and this is the only book of Allah that has not been distorted.

The Quran is not only a book of law. Its main purpose is to awaken in man the higher consciousness of his relation with Allah and the universe. However, in the Quran there are at least five hundred verses which possess definite legal elements. The scholars of Islam have developed a complete science of interpretation of the Quranic verses that can be seen in any book of Islamic jurisprudence.

The Quran is a compilation of the verbal revelations given to the Holy Prophet Muhammad over a period of twenty two years. The language of the Quran is Arabic. The word Quran means something that is "read" or "recited". The diction of the Quran could be best described as poetic prose and its language is a model of linguistic purity and stylistic elegance.

The Quran is the Holy Book or the Scriptures of the Muslims. It lays down for them the law and commandments, codes for their social and moral behaviour, and contains a comprehensive religious philosophy. It is the ultimate source of the Islamic law and a complete guidance for the Muslims.

The Quran is divided into 114 Surahs or Chapters and each Chapter consists of individual Ayaat or verses. There are in total 6,348 verses in the Holy Quran. The Surahs are of varying lengths, some consisting of a few lines while others run for many pages. Surah al Baqarah is the longest Chapter comprising 287 verses while Surah al Kauthar is the shortest with only four verses including the tasmia.

Each Surah in the Quran has a name given to it. These names are not necessarily revealed but have been introduced by scholars and editors for the sake of reference. These names are usually taken from some prominent or unusual word which occurs in the Surah.

In the printed copies of the Quran, the title of each Surah is followed by the name of the place where the Chapter was revealed. The place names used are "Meccan" for all Surahs revealed before Hijrah (622 A.D.), and "Medinite" for all Surahs revealed after Hijrah. Many of the Surahs in the Quran are composite, and a Chapter marked Meccan may contain some verses from the Medinite period, and vice versa.

During the twenty two year period of the Quranic revelations, Prophet Muhammad lived in Mecca for twelve years (610 622 A.D.) and in Medinah for ten (622 632 A.D.). Of the 114 Surahs of the Holy Quran, about 92 were revealed in Mecca and 22 in Medinah. Generally speaking, there are three characteristics which distinguish Meccan Surahs from the Medinite ones:

1. The Meccan Surahs deal mainly with faith, while the Medinite Surahs deal mainly with action or the implementation of faith.

2. Meccan Surahs are generally prophetic, while the Medinite Surahs deal with the realization and fulfillment of prophecies.

3. Meccan Surahs emphasize Man's relationship with God, while Medinite Surahs emphasize man's relationship with fellow man and lay down rules and regulations for social and moral conduct.

For a time the Quran was being preserved by the early Muslims who would memorize the revelations received by the Holy Prophet. This was the normal practice at that time and the pre Islamic Arabic poems were treated in the same way. However, as the revelations grew in number and as some of the Muslims who had memorized the Quran started to be lost in battles, the Holy Prophet appointed some scribes to write down the Quran.

As the Quranic verses were revealed in passages of varying sizes and belonging to different Surahs, the text of the Holy Quran did not exist in one volume during the life of the Prophet Muhammad. It was during the Caliphates of Abu Bakr and Omar that the task of collecting the Quran in one volume was entrusted to Zayd bin Thabit. During the time of Uthman, the third Caliph of Islam, an authorized version of the Quran was established which was then used for making duplicate copies. These duplicate copies were sent to various parts of the Muslim world to be used as standard texts for further copying.

The text of the Holy Quran has remained unchanged over the past 1400 years. The millions of copies of the Quran circulating in the world today are all identical down to a single letter. And this is not strange since God says in the Holy Quran that He Himself will guard this book:

"Surely it is We Who have revealed the Exposition, and surely it is We Who are its guardians" (15:10)

To the Muslims, the Quran is the Word of God and contains complete guidance for mankind. Much of the Quran is about God, His attributes and man's relationship to Him. But it also contains directives for its followers, historical accounts of certain prophets and peoples, arguments for accepting Muhammad as a genuine Prophet and good news for the believers and warnings for the disbelievers. Broadly speaking, the contents of the Holy Quran fall into five main categories:

1. Nature of the Spiritual World
2. The Law and Commandments
3. Historical Accounts
4. The Wisdom
5. The Prophecies

Source :


1. What is the importance of the Quran for the Muslims?
2. Give an account on the writing and recording of The Holy Quran!
3. What does The Quran contain?

Sunnah/ Hadeeth

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).

Sunnah is the traditions or known practices of the Prophet Muhammad, many of which have been recorded in the volumes of Hadith literature. The resources include many things that he said, did, or agreed to -- and he lived his life according to the Qur'an, putting the Qur'an into practice in his own life. During his lifetime, the Prophet's family and companions observed him and shared with others exactly what they had seen in his words and behaviors -- i.e. how he performed ablutions, how he prayed, and how he performed many other acts of worship. People also asked the Prophet directly for rulings on various matters, and he would pronounce his judgment. All of these details were passed on and recorded, to be referred to in future legal rulings. Many issues concerning personal conduct, community and family relations, political matters, etc. were addressed during the time of the Prophet, decided by him, and recorded. The Sunnah can thus clarify details of what is stated generally in the Qur'an.

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.

Muslims should take the Hadith- Sunnah as a source of Islamic Law as it has been advocated by the Holy Qur'an itself:

"Ati'ullaha wa ati'urrasula wa ulil amri minkum"

"And We have sent down unto you also the Message that you may explain clearly to man what is sent for them, and that they may give thought."

Thus, one of the Prophet (PBUH) duties was to interpret the Qur'anic injunctions.

"Obey Allah and obey the Prophet and render not your actions in vain."

"Whoever obeys the Messenger, he indeed obeys Allah."

Similarly, the Prophet (PBUH) has stressed the importance of his Sunnah. During the course of Khutbah al Wada'ah (Farewell Sermon) the Prophet (PBUH) is reported to have said:

"I leave behind two things, if you hold fast unto them you shall never go astray: the Book of Allah and my Sunnah."

Generally the Holy Qur'an lays down the broad aspects of the Law and Shari'ah obligations which cannot be fulfilled without resorting to the Sunnah of the Prophet the Prophet (s.a.w.s.). For instance, the Holy Qur'an orders Muslims to 'establish Salah' but does not provide the details for its method nor its specific timings. The details are found in the Sunnah. Again, the Holy Qur'an allows one to bequeath a share from one's estate to any person and does not stipulate the maximum limit for such a bequest. The Prophet (s.a.w.s.) is the one who fixed its maximum limit at one third of one's estate only.

In other words then, the Prophet (s.a.w.s.) interpreted the verses of the Holy Qur'an and explained their meanings and implications to the Sahaabah (ra.) for practical application. In the process he (the Prophet) also made provisions for those aspects of the Law which were not specifically provided for in the Holy Qur'an. Likewise, all rules pertaining to sawm (Fasting), Hajj (annual Pilgrimage to Makkah) and Zakaat (compulsory charity) were laid down by the Prophet (s.a.w.s.).

It would be appropriate to point out here that in the Hadith literature there exist specific laws which have not been addressed by the Holy Qur'an. For example, the Prophet (s.a.w.s.) prohibited his followers from indulging in mut'ah (temporary marriage) at the time of the Battle of Khaybar. Likewise, the consuming of donkey meat and the meat of any carnivorous animal was declared by the Prophet (s.a.w.s.) to be Haram (forbidden), while no mention of such prohibition is expressed in the Qur'an. These are only two of many other examples which unequivocally establish the authoritative stance and position of the Hadith in matters of the Shariah.



1. What is Sunnah/Hadith?
2. What is the importance of Hadith?
3. How is the position of Hadith in Islamic jurisprudence?

Consensus of Muslim Scholars

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". The basis for scholarly consensus being a source of law is the Qur’anic command to resolve matters by consultation, as God stated, “Those who answer the call of their Lord, established prayer, and whose affairs are by consultation.” (42: 38). As such, the agreement of the scholars of Islam on any religious matter is a source of law in Islam

During the life time of the Prophet Muhammad PBUH, his companion might ask him directly about the rule on various matters if they dont find it in the Quran. Likewise, if they dont understand the correct meaning or the interpretation of a Qurnic verses, Prophet's explanation could be sought. But after the death of the prophet, in situations when Muslims have not been able to find a specific legal ruling in the Qur'an or Sunnah, the consensus of the community is sought.

Scholarly consensus is defined as being the agreement of all Muslim scholars at the level of juristic reasoning (ijtihad) in one age on a given legal ruling. Given the condition that all such scholars have to agree to the ruling, its scope is limited to matters that are clear according to the Qur’an and Prophetic example, upon which such consensus must necessarily be based.

Imam al-Shafi`i defines the ijma` thus in his 'Risala' (The masterpiece of Imam Shafi'i):

The adherence of the congregation (jama`a) of Muslims to the conclusions of a given ruling pertaining to what is permitted and what is forbidden after the passing of the Prophet, Peace be upon him.

By "congregation of Muslims" he actually means the experts of independent reasoning (ahl al-ijtihad) and legal answers in the obscure matters which require insight and investigation, as well as the agreement of the Community of Muslims concerning what is obligatorily known of the religion with its decisive proofs.

Shafi`i continues (Risala p. 253): "The Prophet's order that men should follow the Muslim community is a proof that the Ijma` of the Muslims is binding." Later on (p. 286) he quotes the hadith whereby the Prophet said: "Believe my Companions, then those who succeed them, and after that those who succeed the Successors. But after them falsehood will prevail when people will swear to the truth without having been asked to swear, and testify without having been asked to testify. Only those who seek the pleasures of Paradise will keep to the Congregation..." Shafi`i comments: "He who holds what the Muslim Congregation (jama`a) holds shall be regarded as following the Congregation, and he who holds differently shall be regarded as opposing the Congregation he was ordered to follow. So the error comes from separation; but in the Congregation as a whole there is no error concerning the meaning of the Qur'an, the Sunna, and analogy (qiyas)."


1. Fa`tasimu bi hablillahi jami`an wa la tafarraqu
"Hold fast to the rope of Allah, all of you, and do not split into

factions" (3:103).

2. `Alaykum bi al-jama`a fa innallaha la yajma`u ummata Muhammadin `ala dalala
"You have to follow the congregation for verily Allah will not make the largest group of Muhammad's community agree on error."

3. Man arada minkum bi habuhat al-jannati fal yulzim al-jama`at
"Whoever among you wants to be in the middle of Paradise, let him cling to the congregation."

4. Kana al-nasu yas'aluna Rasulallahi `an al-khayr wa kuntu as'aluhu `an al-sharr...qultu ya rasulallahi sifhum lana [ayy al-du`at `ala abwabi jahannam] qala hum min jildatina wa yatakallamuna bi alsinatina qultu fa ma ta'murni in adrakani dhalik al-yawm? qala tulzim jama`at al-muslimin wa imamahum
"People used to ask the Prophet about the good and I used to ask him about the evil... I said: O Messenger of Allah, describe them to us [the callers at the door of the fire]. He said: They are of our complexion and they speak our very language. I said: What do you order me to do if that day reaches me? He said: You must keep to the congregation of Muslims and to their leader."

5. Yadu Allah `ala al-jama`a
"Allah's hand is over the group."

al-Munawi said: "Allah's hand is over the group means His protection and preservation for them, signifying that the collectivity of the people of Islam are in Allah's fold, so be also in Allah's shelter, in the midst of them, and do not separate yourselves from them. Whoever diverges from the overwhelming majority concerning what is lawful and unlawful and on which the Community does not differ has slipped off the path of guidance and this will lead him to hell."



1. What is the definition of Ijma'/Scholarly Consensus ?
2. Is muslim bound to the scholarly consensus? Why?
3. What is the basis for scholarly consensus being a source of law?

Legal Analogy (Qiyas)

Legal analogy is a powerful tool to derive rulings for new matters. For example, drugs have been deemed impermissible, through legal analogy from the prohibition of alcohol that is established in the Qur’an. Such a ruling is based on the common underlying effective cause of intoxication.
Legal analogy and its various tools enables the jurists to understand the underlying reasons and causes for the rulings of the Qur’an and Prophetic example (sunna). This helps in dealing with the ever-changing human situations and allows for new rulings to be applied most suitably and consistently.
Analogy in Islamic fiqh denotes the connection of something without a text to its judgment by another textual matter with a judgement by virtue of a shared cause between the two. It is part of submitting to the principle of similarity between matters which obliges similarity in its judgements because sameness in the cause obliges similarity in judgement. Thus analogy is natural and logical because of the logical connection based on similarity. When the similarity is complete, then it must be connected to the same judgement.

Malik, may Allah be pleased with him, issued fatwas for more than fifty years. People came to him from the East and West to ask for fatwa. Since questions are endless and events occur every day, it is necessary for understanding of the texts to go beyond their immediate significance to recognition of their immediate and further aims and to perception of their indications and suggestions, so that the extent of their comprehensiveness may be correctly ascertained. Only then is it possible to understand what lies behind the judgements made by the Companions in cases where there was no well-known sunna and which could not be included within the meaning of the literal text, even though the text might indirectly indicate to it.

Malik used that method and used the similarity between things to arrive at a judgement. When they were similar, the legal cause existed. He employed analogy in certain questions in which he knew the decisions of the Companions. So he made an analogy about the condition of the wife of a missing man when he is deemed to be dead and she does an 'idda as a widow and then marries someone else and then the first man appears alive. He compared this with the case of someone who had divorced his wife and informed her of divorce and then took her back but did not inform her of being taken back and then she married after the end of the 'idda. That was because 'Umar gave a fatwa that this woman belonged to her second husband, whether or not the marriage had been consummated. Malik used this as an analogy for the wife of the missing man and said that she belongs to the second husband, whether or not it has been consummated. There is no doubt that the basis of this analogy is the similarity between the two cases, even if he mentions it with the agreement of the People of Madina. By this it is clear that the basis of the agreement is this analogy, and the basis of the similarity is that both of them married with a good intention on the basis of legal knowledge established by legal means, but the error became clear after that. She had no way to ascertain the error before he appeared. Thus the wife of the missing man married on the basis of the legal judgement and the divorced woman married on the basis of divorce and end of the 'idda, and the wife of the missing man had no way to ascertain whether he is alive and the divorced woman had no way to know she had been taken back. So the two cases are similar and the judgement must be the same and the same judgment is a result of this similarity.


1. What is the definiton of Analogy/Qiyas?
2. How did Imam Malik use the analogy for the judgement of wife of the missing man?
3. What is the similar matter based on the judgement of Umar and the judgement of Imam Malik?