Islamic Jurisprudence

The Sources Sources of Isl Law

Meaning of Sources

• The term used for source is dalil (guide)• مطلوب الى فيه النظر بصحيح التوصل يمكن ماخبرى

(A valid examination of which yields transmitted information)

The Classification of the Sources• The Quran,• Sunnah,• Ijma(Consensus of Legal Opinion), • Qiyas (Analogy), • Istihsan (Juristic Preference), • Qawl al Sahabi (The Opinion of a Companion), • Maslaha Mursalah (Jurisprudential Interest), • Sadda al-Dhariah (Blocking the lawful means to an Ulawful end), • Istishab al-Hal (Presumption of Continuity of a Rule), • Urf (Custom), • and Shara ma Qablana (Earlier Scriptural Laws).

Agreed upon and Disputed Sources

• Unanimously: 1. The Quran 2. The Sunnah• By the majority: 3. Ijam 4. Qiyas• By Nazzam (Mutazali): Ijma is not accepted• By the Zahiri & Jafiri: Qiyas is not accepted• Other than, mentioned above are disputed

Transmitted & Rational Sources

• Transmitted: 1. Quran 2. Sunnah 3. Ijma 4. Opinion of a Companion 5. The earlier Scriptures

• Rational: 1. Qiyas 2. Maslaha 3. Istihsan 4. Istishab

Definitive & Probable Sources

• 1. Definitive (Qati) with respect to transmission & with respect to meaning, like the texts of Quran & Sunnah Mutawatirah that convey single meanings (Nisf)

• 2. Definitive with respect to transmission but are probable with respect to meaning, like the texts of Quran & Sunnah that convey more than one meaning. (Rub your head with water, Quroo)

Definitive & Probable Sources

• 3. Probable with respect to transmission & definitive with respect to implied meaning, like “there is nothing out of the inheritance for the killer”

• 4. Probable with respect to transmission & meaning both like no prayer without recitation of al Fatiha

Definitions of Islamic Sources of Law

• 1. The Quran: • The Quran is the Book revealed to the

Messenger of Allah, Muhammad (pbuh) as written in the masahif and transmitted to us from him through an authentic continuous narration without doubt.

Definitions of Islamic Sources of Law

• 2. The Sunnah:• What was transmitted from the Messenger of

Allah (pbuh) of his words, acts, and (tacit) approvals

The Meaning of Ijtihad

• Definition of Ijtihad:Literal meaning: the expending of maximum effort in the performance of an act

The Meaning of Ijtihad

• Technical meaning of Ijtihad:باالحكام العلم طلب فى وسعه المجتهد بذل

ستنباط اال بطريق الشرعيةIt is the effort made by the muhtahid in seeking knowledge of the ahkam (rules) of the shariah through interpretation.

Implications of the Definition:

• The mujtahid should work to the limits of his ability so much so that he realizes his inability to go any further

• An effort expended by a non-mujtahid is of no consequence, because he is not qualified to do so

Implications of the Definition:

• The effort should be directed towards the discovery of the rules of the shariah that pertaining to the conduct. All other types of rules are excluded

• The method of discovery of the rules should be through interpretation of the texts with the help of other sources. This excludes the memorization of such rules from the books of fiqh or their identification by the mufti.

The Task of the mujtahid is to

• Discover the law that is either stated explicitly in the primary sources or is implied by the texts, that is, discover it through literal interpretation

• Extend the law to new cases that may be similar to cases mentioned in the textual sources, but cannot be covered through literal methods

The Task of the mujtahid is to

• Extend the law to new cases that are not covered by the previous two methods, that is, they are neither found explicitly or implied in the texts nor are they similar to cases found in the texts

Texts that are not subject to Ijtihad

• Definitive texts with respect to transmission & meaning

• Probable meaning is made definitive by Ijma

Three Modes of Ijtihad

First Mode

• He focuses on the literal meaning of the texts (plain meaning, in literature, literal sense or figurative)

The Second Mode

• When literal construction is exhausted by the jurist, he turns to individual text through strict types of analogy

The Third Mode

• The legal reasoning is undertaken more in line with the spirit of the law & its purposes rather than the confines of individual texts

The Qualifications of Mujtahid

• Knowledge of the Arabic Language• Knowledge of al-Kitab (600 legal Verses at

least, Sciences of Quran like repealing & repealed, historical reasoning etc)

The Qualifications of Mujtahid

• Knowledge of the Sunnah (its classifications: Mutawatir, Mashhur, Khabr Wahid, criteria laid down by the jurists for the classification & acceptance of ahadith)

• Knowledge of Ijma

The Qualifications of Mujtahid

• Knowledge of the Objectives of Shariah• Aptitude for Ijtihad

Who is a Mujtahid today?

• Ijtihad is primarily a legislative function• Today the state has the monopoly over

legislation• An opinion issued by a mujtahid would have

no significance unless it is accepted by the state & converted into law through legislation

• Tremendous Scope of collective Ijtihad rather than Individual

The 1st Mode: Interpreting the Texts

• The concept of Bayan (elaboration)• Bayan means to elaborate the meaning and

make it evident ()

Types of Bayan

• Bayan Taqrir (complementary expression or elaboration)

• Bayan Tafsir (enabling expression)• Bayan Taghyir (elaboration by exception)• Bayan Tabdil (conditional expression)• Bayan Darurah (elaboration by necessity)

Bayan Taqrir

• It involves the elaboration of meaning that is already evident

• It removes all doubts about some probable meanings in the text either due to use of a figurative term or general word

• اجمعون كلهم فسجدالمآلئكة• بجناحيه طائريطير ال• This is valid when it accompanies the text as

well as it separated from it

Bayan Tafsir(enabling expression)

• It is an elaboration that provides the details associated with the text & enables the subject to act upon the command in the verse

• Before elaboration the words were Mujmal(unelaborated)orMushtarak(equivocal)

• وآتوالزكوة الصلوة اقيمو• Pray as you see me praying• The detailed rates of payment of Zakat by

Sunnah

Bayan Taghyir (by exception)

• This is confined to exception (change or altration)

• عاما خمسين إال سنة الف فيهم فلبث

Bayan Tabdil(conditional expression)

• It is the making of a Hukm dependent upon the fulfillment of a condition

• أجورهن فأتوهن لكم أرضعن فان

Bayan Darurah (by necessity)

• The elaboration that assigns a meaning to a text for which the text was not originally stated

• ثلث فألمه أبواه وورثه

Literal Interpretation of the texts

• Method of the Hanafis• Method of the Mutakallimun

The structure of interpretation

• 1. The Ahkam are established through “Ibarat al Nass” (the plain meaning rules)

• 2. The ahkam are established through “Isharat al Nass” (the connotation of the texts)

• 3. The Ahkam are established through “Dalalat al Nass” (through meanings implied by the texs)

• The Ahkam are established through “Iqtida al Nass” (through meanings required by the texts of a necessity)

Two types of underlying activity

• 1. Literal forms through which the hukm is indicated like: commands, proscriptions & reports

• Literal forms through the meaning is indicated like: Aam, Khas, Mushkil & Muawwal, and Zahir & Khafi

Ibarat al Nass (the plain meaning rule)

• It the method of looking at the text to determine the meaning that is the main object of the text

• Examples:• بالحق 1 اال الله حرم التى النفس والتقتلوا• واتواالزكوة 2 واقيموااصلوة• الله 3 وأحل الربواة،، مثل إنماالبيع قالوا بأنهم ذالك

الرواة وحرم البيع• ورباع 4 وثالث مثنى النساء من لكم فانكحوماطاب

تعدلوافواحدة أال خفتم فإن

Isharat an Nass(the connotations of the text)

• It is the method in which the hukm is established through an indication of the text by focousing on a meaning accompanying the primary meanings that are the main object of the text

• The ahkam are established by Ibarat al Nass and Isharat al Nass by the same text

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• Examples• وكسوةهن .1 رزقهن له المولود وعلى بالمعروف

• (this indicates that the father has the right over his child, his possession and wealth)

• التعلمون .2 كنتم إن الذكر أهل فسئلو• (it indicates through Isharat an Nass that it is

necessary that a group of schollar be in existence so that they can be asked )

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• االمر .3 فى وشاورهم• (through Isharat al Nass it indicates the

necessity of having a consultative body, because the consulting the entire population is not possible)