SOURCES OF ISLAMIC LAW

Subject : Introduction to law

Student name : Sadaf Perveen

Roll No : LLB.M.R.43

Course instructor : Sir. Zuntiqam- ul- Hassan

Department : Law

Group : Five

Session : ( 24-29)
 SOURCES OF LAW

Sources of law have been divided into to types.

 Modern sources
 Islamic source

Now we are discussing islamic sources of law or source of law in islamic jurisprudence.

The word jurisprudence means knowledge of law and islamic jurisprudence means knowledge of islamic law.
There are two types of sources of islamic law.

 Primary sources
 Secondary sources

Primary source of law

1. Quran
2. Sunnah

Quran as source of law

The Qur’an is the primary and most important source of Islamic law (Shari’ah) because it is believed to be the literal
word of God, revealed to the Prophet Muhammad over 23 years. Its role in Islamic law can be understood through the
following key points:

1. Divine Revelation:
The Qur’an is seen as the ultimate guidance for Muslims, providing commands, prohibitions, and principles
that cover all aspects of life, including worship, morality, and social behavior.
2. Comprehensive Legal Foundation:
It contains specific legal rulings on various matters such as marriage, inheritance, punishment for crimes, and
commercial transactions. These rulings form the basis of many aspects of Islamic law.
3. Ethical and Moral Guidelines:
Besides explicit legal rules, the Qur’an provides overarching principles such as justice, compassion, honesty,
and fairness, which jurists use to interpret and develop laws on issues not directly addressed.
4. Supplemented by Other Sources:
While the Qur’an is the primary source, it is supplemented by the Hadith (sayings and actions of Prophet
Muhammad), Ijma’ (consensus of scholars), and Qiyas (analogical reasoning) to form a comprehensive legal
system.

Thus, the Qur’an is the cornerstone of Islamic jurisprudence, both for its direct rulings and the broader principles that
guide Islamic legal the most influential.

Sunnah as source of law

Definition of Sunnah

Sunnah refers to the teachings, practices, and examples set by the Prophet Muhammad (PBUH). It includes his
actions, sayings, and tacit approvals (things he allowed without directly commenting on). The Sunnah is a practical
interpretation of the Qur’an and serves as a model for Muslims in all aspects of life, including personal behavior,
worship, social interactions, and legal matters.

Sunnah is often categorized into three types:

1. Sunnah Qawliyyah: The sayings or verbal teachings of the Prophet Muhammad (Hadith).
2. Sunnah Filiyyah: The actions or practices of the Prophet.
3. Sunnah Taqriri:: The approvals or silent consent of the Prophet when something was done in his presence and
he did not object.

Sunnah as a Source of Law

The Sunnah is a primary source of Islamic law (Shari’ah), second only to the Qur’an. It serves several key roles in the
development of Islamic law:

1. Clarification of Qur’anic Rulings:

The Qur’an provides general guidelines, but it often requires the Sunnah for explanation and detailed
application. For example, the Qur’an commands Muslims to establish prayer but does not explain how to
perform it. The Sunnah provides the detailed method of performing the five daily prayers.
2. Supplementing the Qur’an:
The Sunnah can introduce rulings on matters not explicitly mentioned in the Qur’an. For instance, the
Qur’an does not specify the prohibition of consuming certain animals like donkeys, but the Sunnah
includes such details.
3. Limiting or Specifying General Qur’anic Principles:
Some verses in the Qur’an are general in nature, and the Sunnah provides specifics. For example, the
Qur’an permits trade and business, but the Sunnah specifies ethical and moral guidelines for conducting
business.
4. Independent Source of Law:
In some cases, the Sunnah introduces legal rulings on matters where the Qur’an is silent. These rulings are
based on the Prophet’s wisdom and understanding of divine guidance. For instance, the prohibition of
eating the flesh of predatory animals comes from the Sunnah.
Importance of Sunnah as a Legal Source

In Islamic jurisprudence, the Sunnah is indispensable because it:

Explains and elaborates on Qur’anic injunctions.

Demonstrates practical implementation of Qur’anic teachings.

Acts as a standalone source of rulings in areas where the Qur’an does not provide specific guidance.
Islamic scholars use the Sunnah, preserved in authentic collections of Hadith, as a key source in deriving legal rulings
through the process of fiqh (Islamic jurisprudence). Together with the Qur’an, the Sunnah forms the foundation of
Islamic law.

Secondary sources of law

1 ijmah
2 Qiyas
3 Istehsan

4 Istidlal

5 Ijtihad

6 Taqlid

Ijmah as source of law

Definition of Ijma’

Ijma’ refers to the consensus of Islamic scholars on a particular legal or theological issue. It is the collective
agreement of qualified jurists from the Muslim community (ummah) on matters that are not explicitly addressed by
the Qur’an or Sunnah (the practices and sayings of the Prophet Muhammad). Ijma’ is derived from the belief that the
Muslim community, particularly its scholars, will not agree on something that is wrong, based on a well-known
hadith of the Prophet: “My ummah will never agree upon error” .

Ijma’ as a Source of Law

Ijma’ is considered one of the secondary sources of Islamic law (Shari’ah), following the Qur’an and the Sunnah. It
plays a significant role in Islamic jurisprudence, especially when new situations arise that are not directly addressed
in the Qur’an or Sunnah. It is used by scholars to derive rulings through consensus and helps in the interpretation and
application of Islamic principles in different contexts.

Functions of Ijma’ in Islamic Law:

1. Supplementing the Qur’an and Sunnah:

When neither the Qur’an nor the Sunnah provide explicit guidance on a particular issue, scholars reach consensus
through ijma’ to derive legal rulings. This helps in addressing contemporary issues that were not present during the
time of the Prophet Muhammad, such as modern financial transactions or bioethical concerns like organ donation.

2. Confirming or Interpreting Existing Laws:

Ijma’ can be used to confirm and standardize the interpretation of laws found in the Qur’an and Sunnah. It ensures
that these interpretations are applied consistently across different times and regions, preventing confusion or
contradictory rulings.

3. Adapting Islamic Law to New Realities:

As societies evolve, ijma’ enables Islamic law to adapt while staying true to its foundational principles. By reaching a
consensus, scholars can address novel issues such as technological advances or new forms of governance that the
Qur’an and Sunnah do not specifically mention.

Types of Ijma’
 1. Ijma’ Sarih (Explicit Consensus):

This type of ijma’ occurs when all scholars of a particular era clearly agree on a specific issue. Their agreement is well-
documented and undeniable. This type of consensus is rare because it requires unanimity among all qualified
scholars.

2. Ijma’ Sukuti (Implicit Consensus):

This occurs when a legal opinion is proposed by some scholars, and the rest remain silent or do not object. This
silence is interpreted as tacit approval, leading to consensus. Ijma’ Sukuti is more common and offers greater
flexibility in deriving legal rulings.

Importance of Ijma’ as a Legal Source of the Ummah:

Ijma’ helps maintain unity within the Muslim community by preventing divisions over key legal and theological issues.
Once consensus is reached, it becomes binding, and further disputes on the matter are generally avoided.

1. Continuity of Law:

Ijma’ provides a mechanism for ensuring the stability and continuity of Islamic law over time. By reflecting the
collective wisdom of scholars, it ensures that Islamic legal rulings remain consistent and aligned with the spirit of the
Shari’ah.

2 Legal Authority:

Once established, ijma’ carries a high level of authority in Islamic law. It is often treated as binding, and departing
from it is generally considered impermissible. Scholars see it as reflecting divine guidance through the collective
agreement of the community’s most knowledgeable individuals.

Conclusion

Ijma’ is an essential source of Islamic law, allowing for the development of new rulings based on the consensus of
scholars. It ensures that Islamic law can adapt to new challenges and circumstances, while still remaining faithful to
the principles of the Qur’an and Sunnah. By upholding the idea of consensus, ijma’ also fosters unity and consistency
in legal decisions within the Muslim community.

Qiyas as source of law

Definition of Qiyas

Qiyas is an Islamic legal term that refers to analogical reasoning. It is a method used by Islamic jurists to derive legal
rulings for new situations that are not explicitly addressed in the Qur’an or Sunnah by comparing them to cases with
established rulings. Qiyas involves identifying a common underlying reason (`illah) between the new case and an
established precedent, and then extending the ruling of the established case to the new one.

For example, the Qur’an prohibits the consumption of alcohol because it intoxicates the mind. Using qiyas, scholars
extend this ruling to other substances that cause intoxication, such as narcotics, even though they are not explicitly
mentioned in the Qur’an.

Qiyas as a Source of Law

Qiyas is considered one of the secondary sources of Islamic law (Shari’ah), alongside Ijma’ (consensus), following the
primary sources—the Qur’an and Sunnah. It allows Islamic jurists to deduce rulings in new circumstances by applying
established principles from the primary sources.

Functions of Qiyas in Islamic Law:

 1. Addressing New Issues:

In the evolving world, new issues arise that were not directly addressed in the Qur’an or Sunnah. Qiyas provides a
systematic method for Islamic scholars to derive rulings for these issues by comparing them to similar, previously
resolved cases. For example, the permissibility of certain modern financial transactions, like credit cards, is derived
using qiyas.

2. Applying Established Principles:

Qiyas enables scholars to apply the established principles of Islamic law to new scenarios. By understanding the
reasoning (`illah) behind a ruling in the Qur’an or Sunnah, scholars can apply it to similar cases where the same
reasoning holds.

3. Ensuring Consistency and Rationality:

Qiyas ensures that Islamic law remains consistent and logical by applying similar rulings to similar cases. This
prevents arbitrary decisions and ensures that new rulings align with the overall spirit and objectives of the Shari’ah
(maqasid al-shariah).

Elements of Qiyas

1. Asl (Original Case):

The original case with a ruling found in the Qur’an or Sunnah. For instance, the prohibition of wine is an established
ruling in the Qur’an.

2. Far’ (New Case):

The new case that requires a ruling but is not explicitly mentioned in the primary sources. For example, the question
of whether drugs like heroin are permissible.

3. **Illah (Effective Cause)**: The common reason or cause behind the ruling of the original case, which can
be applied to the new case. In the case of wine, the illah (reason) is intoxication.
4. Hukm (Legal Ruling):

The legal ruling from the original case, which is extended to the new case. Since both wine and heroin intoxicate the
mind, qiyas would extend the ruling of prohibition (haram) to heroin.

Importance of Qiyas as a Source of Law

1. Filling Gaps in the Law:

Since the Qur’an and Sunnah do not provide specific rulings for every possible scenario, qiyas is essential for deriving
legal rulings on new matters. It ensures that Islamic law can address contemporary issues, even those not explicitly
mentioned in the foundational texts.

2. Preserving the Integrity of the Shari’ah:

By deriving rulings through analogical reasoning, qiyas ensures that the core principles of the Qur’an and Sunnah are
preserved and applied consistently, preventing the distortion or arbitrary interpretation of Islamic law.

3. Rational Basis for Legal Rulings:

Qiyas provides a rational and logical method for deriving legal rulings. It emphasizes the importance of understanding
the reasoning behind a ruling and applying that reasoning to new situations, ensuring that Islamic law remains both
flexible and grounded in divine revelation.

Conclusion

Qiyas is an essential tool in Islamic jurisprudence, allowing scholars to apply the teachings of the Qur’an and Sunnah
to new circumstances through analogical reasoning. It serves as a secondary source of law, helping to ensure the
consistency, relevance, and rationality of Islamic legal rulings across different times and contexts. By extending the
rulings of established cases to new ones based on shared reasoning, qiyas allows Islamic law to adapt to evolving
societal challenges while remaining true to its foundational principles.

Istehsan as source of law

Definition of Istihsan

Istihsan (‫ )االستحسان‬is an Arabic term that means “juridical preference” or “seeking the best solution”. In Islamic
jurisprudence (fiqh), it refers to the process of giving preference to one ruling over another based on considerations
of fairness, public interest, or ease, even if it departs from the general principles of analogical reasoning (qiyas).
Istihsan allows Islamic jurists to avoid rigid rulings when those rulings may lead to hardship or injustice in specific
cases.

It is used when strict application of qiyas or other principles of law might result in an outcome that conflicts with the
objectives of Islamic law (maqasid al-shariah), such as justice, fairness, and public welfare.

Istihsan as a Source of Islamic Law

Istihsan is considered one of the secondary sources of Islamic law, along with qiyas (analogical reasoning) and ijma’
(consensus). Although it is not universally accepted by all schools of Islamic law, it is especially important in the
Hanafi school of though.

Examples of Istihsan:

1. Land Leasing :
In classical Islamic law, qiyas might suggest that renting out land is similar to selling its use and should
therefore be impermissible. However, due to the need for agriculture and other land uses, scholars have
allowed the practice through istihsan, making land leasing permissible to serve public benefit.
2. Salam Contracts:

Normally, selling something that is not in one’s possession is prohibited in Islamic law. However, in the case of salam
contracts (where payment is made in advance for goods delivered later), istihsan allows this exception due to the
economic necessity of such transactions in agricultural and trade contexts.

Importance of Istihsan as a Legal Source:

1. Flexibility and Ease:

Istihsan ensures that Islamic law remains flexible and capable of addressing the diverse needs of Muslim societies. It
prevents the application of overly strict or rigid rulings that could cause hardship.

2. Promoting Justice and Welfare:

Islamic law aims to establish justice and promote the welfare of society. Istihsan helps achieve these objectives by
allowing jurists to select rulings that are more just and beneficial for the community, even when these rulings diverge
from the usual application of qiyas or other principles.

3. Context-Sensitive Rulings:

Istihsan is especially important in contexts where the strict application of a legal principle may not be suitable due to
changes in social, economic, or technological conditions. It allows Islamic law to remain adaptable and responsive to
new circumstances while still upholding its core values.
Acceptance of Istihsan

The Hanafi school of thought widely accepts istihsan and uses it as an important tool for legal reasoning.

The Maliki school accepts it in a form that is closely related to istislah (consideration of public interest).

The Shafi’i school is generally more cautious about using istihsan, as it prefers strict adherence to qiyas.

The Hanbali school, like the Shafi’i school, limits the use of istihsan, arguing that it could lead to subjective reasoning
and undermine established principles of law

Conclusion

Istihsan is a key tool in Islamic jurisprudence that allows for flexibility, fairness, and consideration of public welfare in
the application of Islamic law. By allowing jurists to prioritize more just or beneficial rulings in specific cases, istihsan
helps Islamic law remain relevant and responsive to the needs of individuals and society while adhering to its
fundamental principles. Though it is not universally accepted across all schools of thought, it plays an important role
in making Islamic law adaptable and just.

Istidlal as source of law

Definition of Istidlal

Istidlal in Islamic jurisprudence refers to the process of deducing legal rulings from evidence or sources that are not
explicitly covered by the primary sources of Islamic law (the Qur’an and Sunnah). It involves the use of rational
evidence, logical reasoning, or inference when clear guidance is not provided by the primary sources. The term
“istidlal” is derived from the Arabic root dalala, meaning “to point to” or “to indicate,” and it essentially refers to the
act of seeking proof or evidence for a legal ruling.

Istidlal can include the use of various methods such as reasoning, examining indirect evidence, or using accepted
juristic principles to derive a ruling.

Istidlal as a Source of Islamic Law

Istidlal is considered a secondary source of Islamic law, used by scholars when the primary sources do not provide
clear rulings on a particular issue. It represents the process of extending the legal framework through reasoned
deduction, based on the principles laid out by the primary sources.

Functions of Istidlal in Islamic Law:

1. Filling Legal Gaps:

Istidlal allows scholars to address situations where no explicit rulings are available in the Qur’an or Sunnah. Through
reasoning and inference, jurists can develop rulings that are consistent with Islamic principles and values. For
example, rulings on modern issues such as artificial intelligence or organ transplantation may be derived using
istidlal.

2. Reasoning from General Principles:

While the Qur’an and Sunnah provide general principles, istidlal allows scholars to apply these principles to specific
issues. For example, the principle of no harm found in the Sunnah can be used to prohibit practices that cause harm
to individuals or society, even if such practices are not explicitly mentioned in the primary texts.

3. Adapting to New Circumstances:

As societies evolve and new issues emerge, istidlal provides a method for adapting Islamic law to modern contexts
while remaining faithful to its core principles. This flexibility is essential for ensuring that Islamic law can respond to
changing social, technological, and economic circumstances .

Conclusion
Istidlal is an important secondary source of Islamic law that enables scholars to deduce legal rulings when the
primary sources (Qur’an, Sunnah, Ijma’, and Qiyas) do not provide clear guidance. By using rational reasoning,
inference, and considerations of public interest, istidlal ensures that Islamic law remains flexible and adaptable in
addressing new and complex issues, while staying true to the principles and objectives of the Shariyt.

Ijtihad as source of law

Definition

Ijtihad involves interpreting and applying the principles found in Islam’s primary sources—the Quran and the Sunnah
(the teachings and practices of the Prophet Muhammad)—to situations or issues that are not explicitly addressed in
these texts. In cases where clear guidance is not present in the Quran or Sunnah, scholars use their reasoning to
arrive at a solution while maintaining adherence to Islamic principles.

Ijtihad as a Source of Islamic Law:

Ijtihad plays a significant role in Islamic jurisprudence by offering flexibility and adaptability in response to new or
unprecedented legal questions. It is considered one of the secondary sources of Islamic law, alongside:

1. Quran (the holy book of Islam)

2. Sunnah (the sayings, actions, and approvals of the Prophet)
3. Ijma (consensus of scholars)
4. Qiyas (analogical reasoning)

How Ijtihad Functions:

When there is no clear text from the Quran or Sunnah on a particular matter, scholars engage in ijtihad to interpret
the underlying principles and reach a ruling.

Ijtihad allows the adaptation of Islamic law to different contexts, such as changes in social, economic, or
technological conditions, while still being rooted in core Islamic values.

Qualifications of a Mujtahid: Not everyone can perform ijtihad; it requires deep knowledge of the Quran, Sunnah,
and other areas of Islamic jurisprudence. The mujtahid must be proficient in Arabic, well-versed in legal theory, and
skilled in reasoning.

Historical and Modern Role:

Historically, ijtihad was crucial during the early centuries of Islam when many scholars were interpreting the law for
their local communities. Over time, some scholars believed that the “gates of ijtihad” had closed (taqlid), meaning
scholars should follow established rulings. However, in modern times, many Islamic scholars argue for the revival of
ijtihad to address contemporary issues like bioethics, finance, and technology.

In summary, ijtihad is a dynamic tool that has allowed Islamic law to remain applicable and responsive to the evolving
needs of Muslim societies while upholding the core teachings of Islam.

Taqlid as source of law

Definition:

Taqlid means accepting the legal rulings of a qualified jurist or a recognized school of law without seeking to derive
the rulings directly from the Quran and Sunnah oneself.
It is generally practiced by lay Muslims or scholars who do not possess the qualifications required for ijtihad.

Taqlid as a Source of Islamic Law:

Taqlid serves as a secondary source of Islamic law for most Muslims, as it involves the reliance on the rulings of past
scholars who have engaged in ijtihad. It ensures the preservation and continuity of established legal precedents and
interpretations in Islamic law. In this sense, taqlid functions as a stabilizing force in Islamic jurisprudence, allowing
people to follow recognized interpretations of Sharia without the need for constant reinterpretation.

How Taqlid Functions:

For Laypersons: Most Muslims are not trained in Islamic jurisprudence and, therefore, rely on qualified scholars or
the rulings of their respective legal schools (such as Hanafi, Maliki, Shafi’i, or Hanbali) to understand and follow
Islamic law. This practice of following established rulings is known as taqlid.

For Scholars: Those scholars who are not considered mujtahids (capable of ijtihad) may also practice taqlid by
following the conclusions of earlier, more qualified jurists, especially in areas where they lack personal expertise or
where there is a clear consensus (ijma) on an issue.

Schools of Thought (Madhhab): Taqlid often involves following one of the recognized Sunni legal schools (Hanafi,
Maliki, Shafi’i, and Hanbali) or the Ja’fari school in Shia Islam. Each madhhab has its own set of methodologies for
interpreting Islamic law, and taqlid ensures adherence to these established systems.

Role in Modern Times:

In modern times, the role of taqlid has been debated. Some scholars argue for its continued importance, emphasizing
the value of following established legal traditions. Others, particularly in reformist movements, call for a revival of
ijtihad to address contemporary challenges and changing societal conditions.

Conclusion:

Taqlid acts as a stabilizing mechanism within Islamic law, allowing both laypeople and non-mujtahid scholars to
follow established legal rulings. By adhering to the interpretations of qualified scholars and schools of thought, taqlid
ensures continuity and conformity within the legal framework of Sharia, although it contrasts with the more flexible
and dynamic approach of ijtihad.