Sources of sharia | Wikipedia audio article

Sources of sharia | Wikipedia audio article

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Various sources of sharia are used by Islamic
jurisprudence to elucidate the body of Islamic law. The primary source accepted universally by
all Muslims is the Qur’an, the majority adhering also to the traditionally reported Sunnah,
but rejected by others; Quranism. The Qur’an is the holy scripture of Islam,
believed by Muslims to be the direct and unaltered word of God. The Sunnah consists of the alleged religious
actions and quotations of the Islamic prophet Muhammad, narrated through his Companions
and the Imams (per the beliefs of the Sunni and Shi’ite schools respectively).As Islamic
regulations stated in the primary sources do not explicitly deal with every conceivable
eventuality, jurisprudence must refer to resources and authentic documents to find the correct
course of action. According to Sunni schools of law, secondary
sources of Islamic law are consensus, the exact nature of which bears no consensus itself;
analogical reason; pure reason; seeking the public interest; juristic discretion; the
rulings of the first generation of Muslims; and local customs. Hanafi school frequently relies on analogical
deduction and independent reasoning, and Maliki and Hanbali generally use the Hadith instead. Shafi’i school uses Sunnah more than Hanafi
and analogy more than two others. Among Shia, Usuli school of Ja’fari jurisprudence
uses four sources, which are Qur’an, Sunnah, consensus and the intellect. They use consensus under special conditions
and rely on the intellect to find general principles based on the Qur’an and Sunnah,
and use the principles of jurisprudence as a methodology to interpret the Qur’an and
Sunnah in different circumstances. Akhbari Ja’faris rely more on tradition and
reject ijtihad. According to Momen, despite considerable differences
in the principles of jurisprudence between Shia and the four Sunni schools of law, there
are fewer differences in the practical application of jurisprudence to ritual observances and
social transactions.==Primary sources=====Qur’an===The Qur’an is the first and most important
source of Islamic law. Believed to be the direct word of God as revealed
to Muhammad through angel Gabriel in Mecca and Medina, the scripture specifies the moral,
philosophical, social, political and economic basis on which a society should be constructed. The verses revealed in Mecca deal with philosophical
and theological issues, whereas those revealed in Medina are concerned with socio-economic
laws. The Qur’an was written and preserved during
the life of Muhammad, and compiled soon after his death.The verses of the Qur’an are categorized
into three fields: “science of speculative theology”, “ethical principles” and “rules
of human conduct”. The third category is directly concerned with
Islamic legal matters which contains about five hundred verses or one thirteenth of it. The task of interpreting the Qur’an has led
to various opinions and judgments. The interpretations of the verses by Muhammad’s
companions for Sunnis and Imams for Shias are considered the most authentic, since they
knew why, where and on what occasion each verse was revealed.===Sunnah===
The Sunnah is the next important source, and is commonly defined as “the traditions and
customs of Muhammad” or “the words, actions and silent assertions of him”. It includes the everyday sayings and utterances
of Muhammad, his acts, his tacit consent, and acknowledgments of statements and activities. According to Shi’ite jurists, the sunnah also
includes the words, deeds and acknowledgments of the twelve Imams and Fatimah, Muhammad’s
daughter, who are believed to be infallible.Justification for using the Sunnah as a source of law can
be found in the Qur’an. The Qur’an commands Muslims to follow Muhammad. During his lifetime, Muhammad made it clear
that his traditions (along with the Qur’an) should be followed after his death. The overwhelming majority of Muslims consider
the sunnah to be essential supplements to and clarifications of the Qur’an. In Islamic jurisprudence, the Qur’an contains
many rules for the behavior expected of Muslims but there are no specific Qur’anic rules on
many religious and practical matters. Muslims believe that they can look at the
way of life, or sunnah, of Muhammad and his companions to discover what to imitate and
what to avoid. Much of the sunnah is recorded in the Hadith. Initially, Muhammad had instructed his followers
not to write down his acts, so they may not confuse it with the Qur’an. However, he did ask his followers to disseminate
his sayings orally. As long as he was alive, any doubtful record
could be confirmed as true or false by simply asking him. His death, however, gave rise to confusion
over Muhammad’s conduct. Thus the Hadith were established. Due to problems of authenticity, the science
of Hadith (Arabic: `Ulum al-hadith) is established. It is a method of textual criticism developed
by early Muslim scholars in determining the veracity of reports attributed to Muhammad. This is achieved by analyzing the text of
the report, the scale of the report’s transmission, the routes through which the report was transmitted,
and the individual narrators involved in its transmission. On the basis of these criteria, various Hadith
classifications developed.To establish the authenticity of a particular Hadith or report,
it had to be checked by following the chain of transmission (isnad). Thus the reporters had to cite their reference,
and their reference’s reference all the way back to Muhammad. All the references in the chain had to have
a reputation for honesty and possessing a good retentive memory. Thus biographical analysis (`ilm al-rijāl,
lit. “science of people”), which contains details
about the transmitter are scrutinized. This includes analyzing their date and place
of birth; familial connections; teachers and students; religiosity; moral behaviour; literary
output; their travels; as well as their date of death. Based upon these criteria, the reliability
(thiqāt) of the transmitter is assessed. Also determined is whether the individual
was actually able to transmit the report, which is deduced from their contemporaneity
and geographical proximity with the other transmitters in the chain. Examples of biographical dictionaries include
Ibn Hajar al-Asqalani’s “Tahdhīb al-Tahdhīb” or al-Dhahabi’s “Tadhkirat al-huffāz.”Using
this criterion, Hadith are classified into three categories:
Undubitable (mutawatir), which are very widely known, and backed up by numerous references. Widespread (mashhur), which are widely known,
but backed up with few original references. Isolated or Single (wahid), which are backed
up by too few and often discontinuous references.in a shariah court a qadi (judge ) hears a case,
including witnesses and evidence . then the qadi makes a ruling . sometimes the qadi consults
a mufti or scholar of law, for an opinion.==Secondary sources==
All medieval Muslim jurists rejected arbitrary opinion, and instead developed various secondary
sources, also known as juristic principles or doctrines, to follow in case the primary
sources (i.e. the Qur’an and Sunnah) are silent on the issue.===Consensus===The ijma’ , or consensus amongst Muslim jurists
on a particular legal issue, constitutes the third source of Islamic law. Muslim jurists provide many verses of the
Qur’an that legitimize ijma’ as a source of legislation. Muhammad himself said: “My followers will never agree upon an error
or what is wrong”, “God’s hand is with the entire community”.In
history, it has been the most important factor in defining the meaning of the other sources
and thus in formulating the doctrine and practice of the Muslim community. This is so because ijma’ represents the unanimous
agreement of Muslims on a regulation or law at any given time.There are various views
on ijma’ among Muslims. Sunni jurists consider ijma’ as a source,
in matters of legislation, as important as the Qur’an and Sunnah. Shiite jurists, however, consider ijma’ as
source of secondary importance, and a source that is, unlike the Qur’an and Sunnah, not
free from error. Ijma’ was always used to refer to agreement
reached in the past, either remote or near. Amongst the Sunni jurists there is diversity
on who is eligible to participate in ijma’ , as shown in the following table: In modern Muslim usage it is no longer associated
with traditional authority and appears as democratic institution and an instrument of
reform.===Analogical reason===Qiyas or analogical reason is the fourth source
of the sharia for the majority of Sunni jurisprudence. It aims to draw analogies to a previously
accepted decision. Shiites do not accept analogy, but replace
it with reason (aql); among Sunnis, the Hanbalites have traditionally been reluctant to accept
analogy while the Zahirites don’t accept it at all. Analogical reason in Islam is the process
of legal deduction according to which the jurist, confronted with an unprecedented case,
bases his or her argument on the logic used in the Qur’an and Sunnah. Legally sound analogy must not be based on
arbitrary judgment, but rather be firmly rooted in the primary sources.Supporters of the practice
of qiyas will often point to passages in the Qur’an that describe an application of a similar
process by past Islamic communities. According to supporters of the practice, Muhammad
said: “Where there is no revealed injunction, I will judge amongst you according to reason.” Further, supporters claim that he extended
the right to reason to others. Finally, supporters of the practice claim
that it is sanctioned by the ijma, or consensus, amongst Muhammad’s companions. Islamic studies scholar Bernard G. Weiss has
pointed out that while analogical reason was accepted as a fourth source of law by later
generations, its validity was not a foregone conclusion among earlier Muslim jurists. Thus the issue of analogical reason and its
validity was a controversial one early on, though the practice eventually gained acceptance
of the majority of Sunni jurists. The success and expansion of Islam brought
it into contact with different cultures, societies and traditions, such as those of Byzantines
and Persians. With such contact, new problems emerged for
Islamic law to tackle. Moreover, there was a significant distance
between Medina, the Islamic capital, and the Muslims on the periphery on the Islamic state. Thus far off jurists had to find novel Islamic
solutions without the close supervision of the hub of Islamic law (back in Medina). During the Umayyad dynasty, the concept of
qiyas was abused by the rulers. The Abbasids, who succeeded the Umayyads defined
it more strictly, in an attempt to apply it more consistently.The general principle behind
the process of qiyas is based on the understanding that every legal injunction guarantees a beneficial
and welfare satisfying objective. Thus, if the cause of an injunction can be
deduced from the primary sources, then analogical deduction can be applied to cases with similar
causes. For example, wine is prohibited in Islam because
of its intoxicating property. Thus qiyas leads to the conclusion that all
intoxicants are forbidden.The Hanafi school of thought very strongly supports qiyas. Imam Abu Hanifa, an important practitioner
of qiyas, elevated qiyas to a position of great significance in Islamic law. Abu Hanifa extended the rigid principle of
basing rulings on the Qur’an and Sunnah to incorporate opinion and exercise of free thought
by jurists. In order to respond suitably to emerging problems,
he based his judgments, like other jurists, on the explicit meanings of primary texts
(the Qur’an and sunnah). But, he also considered the “spirit” of Islamic
teachings, as well as whether the ruling would be in the interest of the objectives of Islam. Such rulings were based on public interest
and the welfare of the Muslim community. The Shafi’i school of thought accepts qiyas
as a valid source. Imam Shafi’i, however, considered it a weak
source, and tried to limit the cases where jurists would need to resort to qiyas. He criticized and rejected analogical deductions
that were not firmly rooted in the Qur’an and sunnah. According to Shafi’i, if analogical deductions
were not strictly rooted in primary sources, they would have adverse effects. One such consequence could be variety of different
rulings in the same subject. Such a situation, he argued, would undermine
the predictability and uniformity of a sound legal system. Imam Malik accepted qiyas as a valid source
of legislation. For him, if a parallel could be established
between the effective cause of a law in the primary sources and a new case, then analogical
deduction could be viable tool. Malik, however, went beyond his adherence
to “strict analogy” and proposed pronouncements on the basis of what jurists considered was
“public good”.===Juristic preference===Abu Hanifa developed a new source known as
juristic preference. Juristic preference is defined as: A means to seek ease and convenience,
To adopt tolerance and moderation, To over-rule analogical reason, if necessary.The
source, inspired by the principle of conscience, is a last resort if none of the widely accepted
sources are applicable to a problem. It involves giving favor to rulings that dispel
hardship and bring ease to people. The doctrine was justified directly by the
Qur’anic verse stating: “Allah desires you ease and good, not hardship”. Though its main adherents were Abu Hanifa
and his pupils (such as Abu Yusuf), Malik and his students made use of it to some degree. The source was subject to extensive discussion
and argumentation, and its opponents claimed that it often departs from the primary sources.This
doctrine was useful in the Islamic world outside the Middle East where the Muslims encountered
environments and challenges they had been unfamiliar with in Arabia. One example of isthisan is cited as follows:
If a well is contaminated it may not be used for ritual purification. Istihsan suggests that withdrawing a certain
number of buckets of water from the well will remove the impurities. Analogical reason, however, dictates that
despite removing some of the water, a small concentration of contaminants will always
remain in the well (or the well walls) rendering the well impure. The application of analogy means the public
may not use the well, and therefore causes hardship. Thus the principle of justistic preference
is applied, and the public may use the well for ritual purification.===Public interest===
Malik developed a tertiary source called al-maslahah al-mursalah, which means that which is in
the best interests of the general public. According to this source of Islamic law, rulings
can be pronounced in accordance with the “underlying meaning of the revealed text in the light
of public interest”. In this case, the jurist uses his wisdom to
pursue public interest. This source is rejected by the Shafi’ites,
Hanbalites and Zahirites from Sunni jurisprudence.===Inference===
Shafi’i accepted cases in which he had to be more flexible with the application of Qisas. Similar to Abu Hanifa and Malik, he developed
a tertiary source of legislation. The Shafi’i school adopted istidlal or inference,
a process of seeking guidance from the source. Inference allowed the jurists to avoid strict
analogy in a case where no clear precedent could be found. In this case, public interest was distinguished
as a basis for legislation.Muslim scholars divided inference into three types. The first is the expression of the connection
existing between one proposition and another without any specific effective cause. Next, inference could mean presumption that
a state of things, which is not proved to have ceased, still continues. The final type of inference is the authority
as to the revealed laws previous to Islam.===Reason===Shi’ite jurists maintain that if a solution
to a problem can not be found from the primary sources, then aql or reason should be given
free rein to deduce a proper response from the primary sources. The process, whereby rational efforts are
made by the jurist to arrive at an appropriate ruling, when applied is called ijtihad (literally
meaning “exerting oneself”). Shi’ite jurists maintain that qiyas is a specific
type of ijtihad. The Sunni Shafi’ school of thought, however,
holds that both qiyas and ijtihad are the same.Sunni jurists accepted ijtihad as a mechanism
for deducing rulings. They, however, announced an end to its practice
during the thirteenth century. The reason for this was that centers of Islamic
learning (such as Baghdad, Nishapur, and Bukhara) had fallen into the hands of the Mongols. Thus, the “doors to ijtihad”, were closed. In Sunni Islam, thus, ijtihad was replaced
by taqlid or the acceptance of doctrines developed previously. Later in Sunni history, however, there were
notable instances of jurists using reason to re-derive law from the first principles. One was Ibn Taymiyya (d. 728/1328), another was Ibn Rus̲h̲d (Averroes
d. 595/1198).There are many justifications, found
in the Qur’an and sunnah, for the use of ijtihad. For example, during a conversation with Mu’ādh
ibn Jabal, Muhammad asked the former how he would give judgments. Mu’ādh replied that he would refer first
to the Qur’an, then to the Sunnah and finally commit to ijtihad to make his own judgment. Muhammad approved of this.A lawyer who is
qualified to use this source is called a mujtahid. The founders of the Sunni madhabs (schools
of law) were considered such lawyers. All mujtahid exercise at the same time the
powers of a mufti and can give fatwa. Some mujtahid have claimed to be muj̲addid,
or “renewer of religion.” Such persons are thought to appear in every
century. In Shi’ite Islam they are regarded as the
spokespersons of the hidden Imam.===Local custom===The term urf, meaning “to know”, refers to
the customs and practices of a given society. Although this was not formally included in
Islamic law, the sharia recognizes customs that prevailed at the time of Muhammad but
were not abrogated by the Qur’an or the tradition (called “Divine silence”). Practices later innovated are also justified,
since Islamic tradition says what the people, in general, consider good is also considered
as such by God. According to some sources, urf holds as much
authority as ijma (consensus), and more than qiyas (analogical deduction). Urf is the Islamic equivalent of “common law”.Local
custom was first recognized by Abū Yūsuf (d. 182/798), an early leader of the Ḥanafī
school. However, it was considered part of the Sunnah,
and not as formal source. Later, al-Sarak̲h̲sī (d. 483/1090) opposed it, holding that custom
cannot prevail over a written text.According to Sunni jurisprudence, in the application
of local custom, custom that is accepted into law should be commonly prevalent in the region,
not merely in an isolated locality. If it is in absolute opposition to Islamic
texts, custom is disregarded. However, if it is in opposition to analogical
reason, custom is given preference. Jurists also tend to, with caution, give precedence
to custom over doctoral opinions of highly esteemed scholars. Shi’ite scholars do not consider custom as
a source of jurisprudence, nor do the Hanbalite or Zahirite schools of Sunni jurisprudence.==See also==
Fiqh Ijazah
Madrasah==Notes====References==
ʻAlwānī, Ṭāhā Jābir Fayyāḍ. Uṣūl Al Fiqh Al Islāmī. IIT. Based on the author’s PhD thesis at Al-Azhar
University. Hasan, Abrar (2004). Principles of modern Islamic jurisprudence. Karachi: Pakistan Academy of Jurists. Momen, Moojan (1985). An Introduction to Shi`i Islam: The History
and Doctrines of Twelver Shi’ism. Yale University Press. ISBN 0-300-03531-4. Motahhari, Morteza (1983). Jurisprudence and Its Principles, translator:Salman
Tawhidi. Moslem Student Association (Persian Speaking
Group). ISBN 0-940368-28-5. Nomani, Farhad; Rahnema, Ali. (1994). Islamic Economic Systems. New Jersey: Zed books limited. ISBN 1-85649-058-0. Qadri, A. A (1986). Islamic jurisprudence in the Modern World. New Delhi: Taj Company.===Encyclopedias===
The New Encyclopædia Britannica (Rev ed.). Encyclopædia Britannica, Incorporated. 2005. ISBN 978-1-59339-236-9. Libson, G.; Stewart, F.H. “ʿUrf.” Encyclopaedia of Islam. Edited by: P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel and W.P. Heinrichs. Brill, 2008. Brill Online. 10 April 2008==Further reading==
Fadlalla, Mohamed; Lang, Peter. Das islamische Ehe- und Kindschaftsrecht im
Sudan, Frankfurt, 2001. ISBN 3-631-37722-3
Fadlalla, Mohamed. Die Problematik der Anerkennung ausländischer
Gerichtsurteile: Beiträge zum Internationalen Zivilprozessrecht und zur Schiedsbarkeit. Tectum, 2004. ISBN 3-8288-8759-7
Glassé, Cyril. The
Concise Encyclopaedia of Islam, 2nd Edition. London: Stacey International, 1991. ISBN 0-905743-65-2
Goldziher, Ignaz; translated by Hamori, R. Introduction to Islamic Theology and Law. Princeton: Princeton University Press, 1981. ISBN 0-691-10099-3
Hallaq, Wael. “Was the Gate of Ijtihad Closed?”, International
Journal of Middle East Studies, 16 (1): 3-41, 1984. Kamali, Mohammad Hashim. Principles of Islamic Jurisprudence, Cambridge:
Islamic Text Society, 1991. ISBN 0-946621-24-1
Kamali, Mohammad Hashim. Principles of Islamic Jurisprudence, 2003. Musa, Aisha Y. Hadith as Scripture: Discussions on the Authority
of Prophetic Traditions in Islam, New York: Palgrave, 2008. Richard Potz: Islamisches Recht und europäischer
Rechtstransfer, in: Europäische Geschichte Online, hrsg. vom Institut für Europäische
Geschichte (Mainz), 2011, Zugriff am: 24.08.2011==External links==
Sunni Shari`ah and Fiqh
Source Methodology In Islamic Jurisprudence by Taha Jabir Al ‘AlwaniShia Jurisprudence and Its Principles by Morteza
Motahhari The Principle of Ijtihad in Islam by Morteza
Motahhari The Role of Ijtihad in Legislation by Morteza
Motahhari

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