15 July 2013 Written by  Abdulmalik Abubaker

Source of Islamic Law

 

 

Introduction

               ‘The literal meaning of sharia is ‘the road to watering hold’,

                the clear, right or straight path to be followed. In Islam, it

                came to mean the divinely mandated path, the straight path,

                the straight path to Islam, that Muslim were to follow, God’s

                will or law. However, because the Quran does not provide an

                exhaustive body of law, the desire to discover and delineate

                Islamic Law in a comprehensible and consistent fashion led

                to the development of the science of law, or jurisprudence

                (fiqh). Fiqh, ‘understanding’, is that science or discipline that

                sought to ascertain, interpret, and apply God’s will or guidance

                (shariah) as found in the Quran to all aspects of life’             

Thus for any idea to arise certain customs and usages other than economic factors are relevant. This is especially true for law as it is for any other social science.  Thus the Islamic legal system as is well known had its origin in Arabia and has been developed by Arabia jurists, and we should, therefore, naturally expect to find on it the impress of Arabia’s social history and the Arab mind and character.  In other words the ground works of Islamic legal system, like that of other legal systems, is to be found in the customs and   usages of the people among whom it grew and developed.

The sources are four: The Quran, the Sunna, the ljmaand Qiyas.   They are referred as “roots” of Islamic jurisprudence.   The first two Quran and Sunna are wholly developed in the life time of the Prophet [PBUH] and Quran is the supreme source of the Islamic law. While the Holy Quran and the Sunnah comprises the primary sources, the Al-Ijma and Al-Qiyas are known as secondary sources

Ouran- The First Primary Sources of the Shera

 

The Quran is the Book of God. It is the eternal, uncreated, literal word of God sent down from heaven, revealed one final time to the Prophet Muhammed as guide for humankind”

The Quran, which consists of 114 chapters of 6,000 verses, has been revealed to the Prophet (PBUH) over a period of 22 years. Its chapters are arranged according to length, not chronology. The longer chapters, which represent the later Medinian revelations, precede the shorter ones representing the earlier Meccan revelation to Mohammed.

Quran means ‘reading’ or recitation and is derived from the word qar’a which literally means ‘to read’. The Quran also calls itself by alternative means such as Kitab (Book), Huda (Guide), Furqan (Distinguished) and Dhikr (Remembrance)

Quran is held to consist of revelations made by Allah to the Prophet (PBUH). Now the question is how that made possible? Dunn-Mascetti gives us the answer.

Mohammed took to spending nights in a hill cave near Mecca. There he pondered the problems which were afflicting Mecca: tribal solidarity was breaking up, and rich merchants preferred to pursue individual (interests) rather than fulfill their duties towards the more unfortunate ones. One day Mohammed heard a vision saying to him ’You are a Messenger of God’. This was the beginning of vocation as Prophet of God. From this time onwards, at frequent interval until his death, he received ‘revelation’-messages that came directly from God. In about 650 CE the messages were collected and written down in the Koran, the sacred scriptures of Islam   

Finally but mainly, Quran can be divided into two:   the oldest one dating from Mecca; that is the first period of the prophet’s life time, contains religious matters which are written in a poetical, often lyrical style while the Medians chapters have much of political and legal nature. These differences correspond to two periods; when the movement began at Mecca; as purely religious and moral reaction against pagan society and ended in Medina with the establishment of a new political – religious community.

                                             

Sunna (Hadis): The Second Primary Source of the Shera

Sunna was regarded in the ancient times among the Arab society as a determinant norm in the conduct of life of the individual and of society.    So this concept is not invented by the Muslims, for it was already well known to the ancient pagans of the period before Islam.  Islam, however, changed the concept and meaning of this ancient term to mean anything that could be proven to have been the practice of the Prophet [PBUH] and his oldest disciples. Slight difference exists between Sunna and Hadis. “The Sunna is restricted to the conduct of the Prophet Muhammed (PBUH), specially his expressed opinion, deeds and tacit approvals” Thus, while the former one refers to the life and teachings of the Prophet (PBUH), the latter one is their classification, collection and codification.          

This source was necessitated for decision of the often raising question, for the solution of which no direct revelation was forthcoming, or certain points had to be explained and made clear.  Thus the Prophet [PBUH] made pronouncements on these matters. They are equally regarded, however, as sacred as Quran though they are communicated orally by the prophet, while the Quran is “a revelation made in God’s own words”.

Ijma (consensus)

The third source of shera is Ijma which is “the infallible consensus of the community”. The Prophet (PBUH), during his life time discussed, approached and considered new problems that arose with his companions. The Prophet (PBUH) also consulted his close companions on issues that were not directly supported by the revelations but which sought their advice and guidance on application of those revelations to various matters. The methodology to utilizing and arriving at this application was the doctrine of Ijma or consensus at all.     

This  was  necessitated for the reason that  fresh facts and  new circumstances arose for  which  no provision has existed in the Quran or hadith – specially as the affairs of the  community became more complex with the growth of Islamic empire.  Thus to meet these changes theQuran and the hadith had to be interpreted.  And   only that interpretation and application of the Quran and Hadith were correct, provided these interpretations were accepted by consensus.

An interesting question may be raised here: How was possible to attain the consensus of the community? In other words how consensus constitutes authortive interpretation?  First  it was  tried in vain the  consensus of the community to be  expressed or shown as consensus of  the  companions of Muhammad or of the old authorities of  Median but  such limitation was found to be too restrictive and therefore  abandoned  .

On the other hand, it can not be left completely to the instinctive feelings of the masses.  Thus “the term was defined as the agreed opinion and teachings of the acknowledged Islamic jurist – theologians of a given period.”    Thus it is safe, if we say.  ljma  is used [other than the foundation  of  Shera ] as means of  attaining the  ever changing needs of  different places and  periods through interpreting the  Quran and Sunna.

Qiyas (Judicial Reasoning)

Despite the fact that all the three sources are used still there may exist a gap, which has to be filled. This is true for all other legal systems. For a judge may not deny rendering a decision on the ground that there are gaps.  Thus in the Shera the device to fill this gap is Qiyas.  As the name indicates it means an inductive process governed by the rules of logic. “It is … extending the principles contained in the sources discussed above, and thereby covers cases not expressly covered. It should be noted, however that as a source, judicial reasoning occupies a subordinate position o the first three sources discussed above, and can not contradict the rules established by them.”

In order to do this the judge has two alternatives:  if he can not give solution through applying Quranand Sunnahe looks into another similar cases in order to search whether a rule can be deducted or not; or he will see to it “whether a solution can be derived from the totality of the law, considering it carefully as a whole and applying to the case in question the solution which corresponds best to the general spirit of the law.

Therefore, the sources of Islamic law are Quran, Sunna [Hadith] Ijma andQiyaswhich are the integrated whole of Islamic legal system. Thus whenever cases arise one has first to resort to the Quran and if the case is not resolved with the help of Quran help can be obtained from the other three sources respectively. Meaning “… right judgment can be arrived at through four sources:  the express words of the book [Quran], unanimously recognized traditions (hadith), logical reasoning [Qiyas] and consensus of the community [jjma]”.