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 (Sm). The Prophet Sm) always acted according to the instructions of Allah (SWT). The Quran is the primary source containing all the fundamental directives and instructions of Allah. Herein are to be found not only directives relating individual conduct but also 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 which has not been distorted. The Quran is not only a book of law. The main purpose of Quran 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 which can be seen in any book of Islamic jurisprudence. 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" (Al-Quran 33:21) Many of books of traditions were compiled by the companions of the Prophet Sm). These were later on incorporated in the great collections of Hadith (i.e. traditions) of Bukhari, Muslim etc. The collectors of the traditions adopted a very scientific system in collection the Traditions. They did not record any tradition except with the chain of narrators. Every tradition gives the names 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. The Quran and Sunnah are complementary. The meaning of the Quran is general in nature, the Sunnah makes it specific and particular. The Sunnah explains the instructions of the Quran. The Quranic injunction is sometimes implicit, the Sunnah makes it explicit by providing essential ingredients and details. The Quran and the Sunnah are the primary sources of Islamic law. Ijma (that is consensus of opinion of scholars) are Qiyas (that is laws derived through analogical deduction) are the secondary or dependent sources of Islamic law or Shariah. Ijma and Qiyas derive their value or authority from the Quran and the Sunnah. Therefore, they are called dependent sources. 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 the 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 if Islam said, "Muslim will

never agreee on a wrong matter." As such the agreement of the scholars of Islam on any religious matter is a source of law in Islam (Ref: Principles of Islamic Jurispredence by M. Hashim Kamali). Qiyas is the fourth important source of Islamic law. Qiyas means analogy. Qiyas or analogy is resorted to in respect of problems about which there is no specific provision in the Quran or the Sunnah of the Prophet. In such issues, the scholars have derived law through analogical deductionon the basis of the provisions of the Quran and the Sunnah on some similar situation. The scholars have developed detailed principles of analogical deductions or Qiyas in the books of Islamic jurisprudence. Qiyas is a kind of Ijtihad. The Prophet has permitted Ijtihad which literally means 'to exert'. Technically it means to exert with a view to form an independent judgement on a legal issue. Ijtihad is the Islamic method of facing the new situations and problems in the light of the general principles of the book of Allah SWT), the Quran and the traditions of the Prophet or the Sunnah. Apart from Qiyas, there are other methods of Ijtihad such as Istihsan (that is the juristic preference from different interpretations) and Masalaha (that is moral consideration). In addition to the above sources, the practices of the Khulafa-e-Rashidun (the first four rulers of Islam), the decisions of the judges and the customs of the people are also considered sources of Islamic law in matters which are not spelled out in the Quran and the Sunnah.

IJTIHAD Ijtihd, ( Arabic: effort) in Islmic law, the independent or original interpretation of problems not precisely covered by the Qurn, adth (traditions concerning the Prophets life and utterances), and ijm (scholarly consensus). In the early Muslim community every adequately qualified jurist had the right to exercise such original thinking, mainly ray (personal judgment) and qiys (analogical reasoning), and those who did so were termed mujtahids. But with the crystallization of legal schools (madhabs) under the Abbsids (reigned 7501258), the Sunnites (the majority branch of Islm) held at the end of the 3rd century ah that the gates of ijtihd were closed and that no scholar could ever qualify again as mujtahid. All subsequent generations of jurists were considered bound to taqld, the unquestioned acceptance of their great predecessors as authoritative and could, at most, issue legal opinions drawn from established precedents. The Shites, the minority branch, never followed the Sunnites in this respect and still recognize their leading jurists as mujtahids, although in practice the Shite law is little more flexible than that of the Sunnites. In Shite Iran, the mujtahids act as guardians of the official doctrine, and in committee may veto any law that infringes on Islmic ordinances. Several prominent Sunnite scholars, such as Ibn Taymah (12361328) and Jall ad-Dn as-Suy (1445 1505), dared to declare themselves mujtahids. In the 19th and 20th centuries reformist movements clamored for the reinstatement of ijtihd as a means of freeing Islm from harmful innovations (bidahs) accrued through the centuries and as a reform tool capable of adapting Islm to the requirements of life in a modern world.
Ijtihad is mainly associated with the Usuli Shi'a Muslim Jafari school of jurisprudence. To be valid and accepted it has to be rooted in the Qur'an and the hadith and it is required that no established doctrine rules the case. A mujtahid is an Islamic scholar who is competent to interpret sharia by ijtihad. Whereas Akhbari Shi'a Muslim outright reject ijtihad and do not imitate a mujtahid who practice ijtihad.Contents

The Quran exhorts us in this matter: ..Why should not a group from every section of the believers go forth and become learned in religion; and to warn their people when they return to them, that they may become aware? Quran - Suratut Tawba - 9:122 Those who take up this noble task are known as the mujtahideen. They are also known as fuqaha (singular - faqih). A mujtahid is one who does ijtihad. The literal meaning of ijtihad is to strive with ones total ability and efforts to reach a goal which in this case is to endeavour to deduce the divine laws of sharia from the reliable sources and proofs. To reach the stage of Ijtihad therefore is the capacity to give an expert opinion in the matter of religion. The ijtihad that is forbidden (haram) is that where a mujtahid gives a rule by his own personal judgement, that is, one based neither on the Quran nor on the Sunnah .

Ijtihad is of two types: One is complete; the jurist who attains this level of ijtihad is called "an absolute mujtahid" - mujtahid mutlaq. Such a mujtahid is capable of deducing legal opinion from its respective source in the different fields of fiqh (jurisprudence).The other is incomplete; the jurist who manages thus far is partially equipped, i.e. having attained ijtihad only in some branches of the sharia. Thus, he is capable of deducing a limited legal opinion. Both the mujtahids can practice ijtihad, within the bounds of their own capability of arriving at legal judgments from their respective sources. Each one of them can express his views and fatwa. However, they are dissimilar in some other aspects as will be discussed in the following paragraphIf the fully-fledged, or absolute, mujtahid meets all the conditions laid down by the sharia for the marji, discussed under para(4), the mukallaf can follow him. The mujtahid can also exercise general guardianship (wilayah aammah) over the affairs of Muslims, provided that he is competent all round. The absolute mujtahid qualifies to head the judiciary; by virtue of this he is called judge, or religious authority, (al-hakimush sharii). The fledgling mujtahid cannot exercise general guardianship over the affairs of Muslims, but his legal judgment, [i.e. in a judiciary setting], has a legal force, even in cases where he might not be more knowledgeable than some other mujtahids. It is permissible for the common man to follow his legal opinion, although his knowledge could be inferior to that of some other mujtahids. There falls under the definition of guardianship of the mujtahid such things as safeguarding the affairs of minors, such as the orphan and the mentally handicapped,

public endowments, should they have no guardians of their own. The guardianship of the mujtahid over such affairs could be direct or through intermediaries. If the mujtahid appointed someone for this purpose, then , he passed away, is the appointee justified in continuing to exercise his attorney? A. If the dead mujtahid had appointed the agent (wakeel) to run the affairs of a particular party on his behalf, the attorney is no longer operative after the death of the mujtahid. The agent should therefore turn to a living mujtahid. However, if the deceased had granted the person guardianship, by such wording as, "I make you the guardian over the possessions of this orphan", it remains enforceable, even after his death. If the religious authority (al-hakimush sharii) rules in a case based on the public interest, all Muslims should uphold the ruling. There should be no excuse for anyone who may think that such public interest is not important. To give an example, the sharia has prohibited the monopoly of certain essential merchandise, leaving it to the religious authority to use his discretion to ban free trading in other types of goods by fixing such prices to serve the public interest. If he exercised such mandate, he must be obeyed. 19. It is forbidden for someone who is not mujtahid to issue a fatwa. However, it is not forbidden for someone who is a Mujtahid, but not wholly qualified to be marji, to issue a fatwa by way of making his opinion known; it is forbidden for him, though, to declare himself an authority for the others to follow. 20. It is forbidden for someone to be judge, if he is not trained and consequently qualified in the discipline. By the same token, it is forbidden for defendants to be tried by him; the same goes for those who are called to give evidence before him. Any judgment of compensation, for instance, passed in favor of any party of a lawsuit is unlawful to be had. However, it is permissible for the side to have redress before such a judge. Should his judgment on the matter be sound, and the disputed claim relates to something tangible he should receive back the same; if it were debt, he should obtain the permission of the religious authority to restore it. The fully-fledged mujtahid may pass judgment in a dispute between two persons. Provided that he spares no effort in applying justice, no other mujtahid shall have the right to overturn the decision, even if the latter is absolutely sure that the party in whose favor the judgment was passed is not in the right.

Suppose the mujtahid passed judgment in a disputed ownership of a house in favor the plaintiff. There might be someone who knows that the house belongs to the defendant. Should this person conduct himself in terms of the truth he knows, or according to the judgment of the mujtahid. For instance, if he were to rent the house, whom should he approach, the first party or the second? A. He should act according to his own knowledge. As for those who are not in a position to know for sure that the house does not belong to the plaintiff, they should abide by the judgment of the mujtahid; it is not permissible for them to disobey it.