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1509 InternationalJournalof Law) Management & Humanities [Vol. 5 Iss 1; 1509]
Sources of Islamic Law
RAKSHITA MATHURI
ABSTRACT
Shariah also spells out Shariah, the law, which is the basic religious concept of Islam.
Islamic religious law is considered an expression of God's commandments to Muslims and,
in its application, represents a system of obligations that all Muslims are obliged to do
based on their religious beliefs. Known as Shariah (literally the "road leading to the
drinking fountain "), this law sacredly guides Islam to the practical expression of religious
beliefs in this world and the goal of God's grace in the coming world. It represents the path
of action taken.
Within this paper, we shall explore the meaning and scope of Shariya. It will mostly be
based in the Indian sub-continent, though; some excerpts shall be picked up from all over
the world, particularly Saudi Arabia, as it is the birthplace of Islam. We shall explore the
four major sources of the Sharia - Quran, Sunna or Hadis, Ijma and Qiyas. Furthermore,
we will also explore the Hanafi explanations to other sources such as the (i) Isti Hasan
Juristic preference- Equity, (ii) Isti Salah -Public Interest, (iii) Ijtehad - Exercising one's
own reasoning to deduce the rule of law (Shariat), (iv) Taqlid - Law of Precedents & (v)
Fatwa's - Decisions of Muslim Judges.
Finally, we will cover ancient, medieval and contemporary applications of Islamic law, its
evolution, particularly in the Indian sub-continent and the importance of this evolution.
We shall also learn the different views, consistencies and inconsistencies of each Muslim
source of law among different scholars, as per their understandings and theirfollowers'.
This research paper will cover vast sources from which we will trace the sources of Islamic
laws and their importance, their scope and evolution. To conclude, we will discuss the state
of Indian Islamic law and the usage of these sources within Indian courts.
I. INTRODUCTION
There are 3 kinds of sources - (i) Ancient Sources, (ii) Customary Sources & (iii) Modern
Sources. The Sharia refers to Islamic Law that primarily follows the teaching of Prophet
Muhammad and the Quran. There are four major sources of the Sharia - Quran, Sunna or Hadis,
Ijma and Qiyas. The interpretation of the Quran and the Sunna are generally regarded as the
same in all Islamic schools of Jurisprudence, meaning the Urfi Law. However, the
1Author is a student at DME Law School, IP University, India.
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1510 InternationalJournalof Law) Management & Humanities [Vol. 5 Iss 1; 1509]
interpretation of the Ijma and Qiyas is mainly dependent on which school of law is followed
by the Muslim.
Among the Modern sources, we shall cover - (i) Isti Hasan - Juristic preference - Equity, (ii)
Isti Salah - Public Interest, (iii) Ijtehad - Exercising one's own reasoning to deduce the rule of
law (Shariat), (iv) Taqlid - Law of Precedents & (v) Fatwa's - Decisions of Muslim Judges.
Among the Sunni Muslims, the schools of Muslim Law are - Hanbali, Hanafi, Maliki and Shafi
and the Isna Ashari or Ja-afari, Ismaili, and Zayadi are schools among the Shia Muslims.
Within the Indian sub-continent, Hanafi Sunni Muslims are the dominant group. Therefore,
when we talk about the latter two sources of law, we will be most inclined to their Hanafi
interpretation.
II. QURAN
The Quran is the holy book of Muslims. This is the most important source of Muslim Law. It
is widely recognized as the best work of classical Arabic literature. It is divided into 114
chapters of poetry. The Quran is not merely inspired by Muslims as sacred but is regarded as
the very literal word of God.
"Mohammed didn't write it because he couldn't write. According to tradition, some of
Mohammed's associates worked as scribes and recorded revelations. Shortly after the death of
the Prophet, the Quran was edited by companions who wrote down or memorized some of it." 2
Islamic history claims that "after Mohammed emigrated to Medina to form an Independent
Muslim Community that he would recite the Quran to many of his peers to learn and teach the
laws revealed daily. Some of the Quraysh captured in the Battle of Badr were reported to have
regained their freedom after teaching some Muslims a brief script of the time." 3
A group of Muslims was gradually formed. As first spoken, the Quran was recorded on the
wide, flat edges of tablets, bones, and date palm leaves. Early because most of the Sula is
mentioned in many proverbs from both Sunni and Shia sources related to the use of
Muhammad's Quran as a method of calling, praying, and reading to Islam. They were used
among the Muslims. However, when Muhammad died in 632, the Quran did not yet exist in
the form of a book.
The Qu'ran functions less as text prescribing what is wrong and more of a text describing the
2 Donner,Fred. 2006. "The historical context." Pp. 31-33 in The Cambridge Companion to the Qur'an, edited by
J. D. McAuliffe. Cambridge University Press.
3 P.M. Holt, Ann K.S. Lambton and Bernard Lewis (1970). The Cambridge history of Islam (Reprint. ed.).
Cambridge Univ. Press. p. 32.
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1511 InternationalJournalof Law) Management & Humanities [Vol. 5 Iss 1; 1509]
divinity of God and the code of conduct that must be followed by a true Muslim. In the stricter
sense, anyone who would do anything not prescribed or condemned in the Qu'ran would not
be able to receive "Jannat" or heaven. In more drastic cases, that person would be termed as a
non-believer or Kafir.
Anything written in the Quran is said and believed to be true as well as must be trusted by
every true Muslim. "Since Muhammad was and is regarded as Insan-e-Kamil, i.e. "the one who
has reached perfection", every man, woman and child following Islamic principles must do
everything within their power to be like him." 4
Islamic Penal Law, Hadud offences are stipulated in the Qu'ran. In a traditional Islamic
framework, there were 7 Hadud offences - apostasy, revolt against a rightful Islamic ruler,
theft, highway robbery, adultery, slander, and drinking alcohol. Among all Hadud offences,
apostasy is the greatest crime that can only be punished by death. Today, these Haduds have
evolved and morphed into Hadd crimes.
In today's scenario, the six Hadd crimes for which punishments are fixed are theft (amputation
of the hand), illicit sexual relations (death by stoning or one hundred lashes), making unproven
accusations of illicit sex (eighty lashes), drinking intoxicants (eighty lashes), apostasy (death
or banishment), and highway robbery (death).
"The message of the Quran is at once sapiential and practical, legal and moral, concerned with
everyday problems as well as the spiritual and intellectual life. The Sacred Text deals with
every aspect of human concern, from the deepest intellectual questions and the most lot y
spiritual issues to the mundane matters of ordinary life. It is at once therapeutic and didactic."5
III. HADITH & SUNNA
Hadith refers to the direct words of Prophet Muhammad, Islam's perfect man. These words
have been preserved and protected by the followers of Islam since Muhammad's demise. It is
the second most important source of Muslim law and is only second to the Qu'ran. Though
used interchangeably, Hadith and Sunna mean different things. Hadith refers to the learnings
by a conversation with Prophet Muhammad, as described by his disciples and followers.
Therefore, Hadith refers to the narration of the sayings, doings or approvals (Taqrir) of
Muhammad; however, the Sunna refers to the path followed by Prophet Muhammad in the way
he led his life and set an example for the Muslims to follow, in a more "the ways of God"
4 Little, John T. "Al-Insan al-Kamil: the perfect man according to Ibn al-'Arabi." Muslim World 77.1 (1987): 43-
54.
5 Nasr, S. H., The Study Quran, pp. 21
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(Qur'an 33:37, 62).
"Avoid condemning the Muslim to Hudud whenever you can, and when you can find a way
out for the Muslim, then release him for it. If the Imam errs, it is better that he errs in favour of
innocence (pardon) than in favour of guilt (punishment)." 6
"Were people to be given in accordance with their claim, men would claim the fortunes and
lives of (other) people, but the onus of proof is on the claimant, and the taking of an oath is
incumbent upon him who denies." 7
These excerpts are of the Hadits are sayings by the Prophet documented by his disciples. These
principles form the basis of Muslim Jurisprudence.
From a modern perspective, "The science of Hadith became the most pervasive due to the need
displayed by each of these three sciences. The need hadith has for its science is apparent. As
for Quranic exegesis, then the preferred manner of explaining the speech of God is by means
of what has been accepted as a statement of Muhammad. The one looking at this is in need of
distinguishing the acceptable from the unacceptable. Regarding jurisprudence, then the jurist
is in need of citing as an evidence the acceptable to the exception of the later, something only
possible utilizing the science of Hadith."8
IV. IJMA
Jjma in Arabic directly translates to "consensus" or "agreement". It is the laws that are made
by the consensus of the Muslim community. "Some argue that only the opinions of scholars
are relevant. Others contend that Ijma includes the consensus of the laity. Most agree that the
consensus of Muhammad's Companions, the people of Medina, or the family of the Prophet is
authoritative. Once an ijma is established, it serves as a precedent". 9
Ijma is a secondary source of Islamic Law since it cannot override the Quran, Hadith and
Sunna. The Ijma is often confused with the Ijtihad. "The difference between ijma and ijtihad is
that ijma is (Islam) the consensus of the Muslim community while ijtihad is (Islam) the process
of Muslim jurists making a legal decision by independent interpretation of the Qur'an and the
sunna; such a jurist is a mujtahid."10 Ijma is of two types, (i) Express Ijma or Ijma Qawli. (ii)
Tacit Ijma or Ijma Sakuti. Scholars of the Jurisprudence have been different, and therefore, the
6 M. Cherif Bassiouni, Islamic Law - The Shariah, available at: https://www.mei.edu/publications/islamic-law-
shariah
? Ibid
Ibn Hajar, A., Al Nukad al Kitab ibn al-Salah, vol. 1, pp. 90, Maqtabah al-Farqan
9 Ijma." In The Oxford Dictionary ofIslam. Ed. John L. Esposito. Oxford Islamic Studies.
10 Ben Davis, What is ijma and its examples?, available at: https://www.mvorganizing.org/what-is-ijma-and-its-
examples/
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Ijma has too.
The understanding of an Ijma becomes different as different scholars have varied views on the
basic definition of the Ijma. "According to Iraqi academic Majid Khadduri, Al-Shafi'i held the
view that religiously binding consensus had to include all of the Muslim community in every
part of the world, both the religiously learned and the layman."" Similarly, "Abu
Hanifa, Ahmad ibn Hanbal and Dawud al-Zahiri, on the other hand, considered this consensus
to only include the companions of Muhammad, excluding all generations which followed them,
12
in Medina and elsewhere."
The basic understanding of the Sunni schools is followed mainly as what is said to be as per
the makers of that school. Therefore, in the Indian sub-continent, where we follow the Hanafi
School of Jurisprudence for Muslims, we follow Imam Abu Hanifa's definition. In India, it is
followed as long as it is in accordance with the legal precedents of the Republic of India.
For the Shi'a, the interpretation remains mainly ambiguous and is dependent on the religious
head of the school and the area.
V. QIYAS
The Qiyas are a process of deductive analogy which is comparing and contrasts the Quran and
Hadith. A "nass" (injunction) is applied to a new circumstance that causes the formation of a
new injunction. As in the case of the Ijma, Qiya is a secondary source of Islamic Law.
The need for Qiyas developed shortly after Muhammad's death when the expanding Islamic
state came into contact with societies and situations beyond the Quran and Sunnah. In some
cases, Ijma justified the solution or solved the problem. However, Qiyas is often used to infer
new beliefs and customs based on similarities to past customs and beliefs.
Qiyas are a fundamental instrument of interpretation, not a means of modifying existing law,
but can only be used to find legal principles according to the Quran.
Like the Ijma's views contrast depending on the sect and school of Islamic law, the same is the
case with regards to Qiyas. "Among Sunni traditions, there is still a range of attitudes regarding
the validity of analogy as a method of jurisprudence. Imam Bukhari, Ahmad ibn Hanbal,
and Dawud al-Zahiri, for example, rejected the use of analogical reason outright, arguing that
to rely on personal opinion in law-making would mean that each individual would ultimately
" Mansoor Moaddel, Islamic Modernism, Nationalism, and Fundamentalism: Episode and Discourse, pg.
32. Chicago: University of Chicago Press, 2005.
12 Muhammad Muslehuddin, Philosophy of Islamic Law and Orientalists, Kazi Publications, 1985,
p. 81.
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form their own subjective conclusions." 13
The human reason should not be exercised independently but according to the will of God
appearing in the Quran.
VI. ISTI HASAN - JURISTIC PREFERENCE - EQUITY
Imam Abu Hanifa adopted the principles of Isti Hasan. It literally means liberal construction,
legal preference, or what we now call fairness. The term is used to describe the required rules
and the freedom to establish the specific circumstances so required. The objection is that it
leaves little control over the discretion in interpreting the law. A well-known example of the
usage of Isti Hasan is that "Abu Hanifah stated that the one who eats out of forgetfulness whilst
fasting should repeat the fast - however, he moves away from this by the evidence of a narration
that allows the fast to stand." 14
VII. ISTI SALAH (ISTIHALAH) - PUBLIC INTEREST
"Istihalah is an Arabic word which is derived from the root word (: s J (that means to change
(Ibn Manzur 1990; Wehr 1974); it is synonymous with the word (Jd-- (or changes (,-A, (and
transformation (,i25) (al-Razi 1997), thus istihalah literally means transformation and
conversion (Wahbah 1997). According to Qal'ahji in Mu'jam Lughah al-Fuqaha', istihalah of
a substance from one form to another without the possibility of a return to the original forms
(Qal'ahji 1996). This viewpoint is in line with Sa'di Abu Jayyib's opinion, where istihalah is
said to hold when a substance has undergone complete changes (Abu Jayyib 1988). For
example, the seeds grow, and changes to a tree or a transformation of filth become dust (Al-
'Ayid n.d.)." 15
Imam Malik approved the introduction of Isti Salah (public interest) in preference to Isti
Hasan.
He laid down that ordinarily, the analogy was used to expand the law, but if it appears that a
rule indicated by analogy is opposed to general utility, then Isti Salah (principles of public
interest) should be reported to.
13 Mansoor Moaddel, Islamic Modernism, Nationalism, and Fundamentalism: Episode and Discourse, pg.
32. Chicago: University of Chicago Press, 2005.
14 Abd al-Aziz al-Bukhari, Kash al-Asrar, Vol 4,7
15 Jamaluddin, M.A., Ramli, M.A., Hashim, D.M., Rahman, S.A., Fiqh Istihalah: Integration
of Science and
Islamic Law, Revelation and Science Vol. 02, No.02 (1434H/2012) 117-123
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1515 InternationalJournalof Law Management & Humanities [Vol. 5 Iss 1; 1509]
VIII. IJTEHAD - EXERCISING ONE'S OWN REASONING TO DEDUCE THE RULE OF LAW
(SHARIAT)
Ijtihad was born when the Quran and Hadith did not reveal the exact line. Ijtihad means the
exercise of an individual's independent judgment or rational opinion or your own deliberations
to derive the rules of Shari'a law.
"In the complete procedure of Islamic legislation, Ijtihad plays an important role and has a
central position in the whole process because Islamic law has two levels; essential and
existential. The first level of Islamic law, being the actual spirit, is related to the progress and
development of human life, while the second level, which is a structural form of Islamic law's
aims to give it discipline and structure. The demands of life are going to change day by day,
and human life also comes under the influence of these changes. In this changeable
phenomenon, it becomes necessary to take on the structural review of Islamic laws, but it must
be kept in mind that the spirit and discipline of Islamic law must be alive and does not clash
with the aspects of the evolution of human life. Their mutual clash and disagreement have to
make it possible to describe the vitality and development of life into nonproductive and
inactivate state attain to organize and association become far from possible. In the process of
law-making, the achievement of this responsibility is proved by Ijtihad. In the changing
situation of every period, this process of Ijtihad is very effective in Islamic law." 16
Ijtihad was a privilege of great scholars and musicians. The Mujtahids qualification consists of
complete knowledge of the Quran. With the end of Mujitahide, the door of Ijtihad no longer
remains open. This is known as the closure of the Golden Gate of Ijtihad.
"Federal Shariat court directly consults the Quran and Sunnah and gives the judgment
according to the injunctions of the primary sources of Islam. In the case of the protection of
women, federal Shariat court also consults with the Muslim Family Law Ordinance." 1 7
"Taglid is mentioned in Holy Quran. Verses in which Taqlid is stated are mentioned here. Allah
Almighty stated in Holy Quran: 18
"Believers!
Obey Allah and obey the Messenger (blessings and peace be upon him) and those (men of
16
Tahir-ul-Qadri, M., Ijtehad and its meanings, applicationsand scopes, Minhaj-ul-Quran Publications, Lahore
" Pakeeza, S, Fatima, F, Ijtihadas a legislativefunction: Role of Ijtihad, Ifta and Taqleed in Legislative
Process,
Journal of Islamic & Religious Studies, Jan-Jun 2016, I:I
18 Ibid
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19
Truth) who hold command among you."
IX. TAQLID - LAW OF PRECEDENTS
"The term taglid has been derived from the Arabic word "al-qaladah", which means to put
something into the neck of someone. Taqlid literally means to follow the opinion of another
person without knowledge of the authority of such an opinion (Ibn Manzur, 1988). In a
technical sense, it is defined as to follow the opinion/ fatwa of a jurist blindly without knowing
its reality, source and evidence upon which the fatwa is based (Muhammad Ali alSais, 1986)."20
After Ijtihad, or when the gates of Ijtihad were closed, the parallel doctrine of Taqlid (the law
of precedent) arose. Under Taqlid (literally imitating), it means following the opinions of
others.
"In the constitution of Pakistan, article 189 and 201 are related to Taqlid. Article 189 and 201
makes the decisions of the Supreme Court binding on all courts and the High court judgments
binding on all subordinate courts. The institutionalized forms of Taqlid are the doctrine of
precedent. The opinions of the High court are followed by lower courts. This is considered as
Taqlid. Common people accept the decisions of judges in their legal problems. Similarly, the
statements of witnesses accept by the court unless their truth is challenged. Likewise, the
opinions of experts in routine matters are followed by people. It can be concluded that Taqlid
is an essential principle of our daily lives based upon the division of labour where some people
specialize in a specific field and become experts. Likewise, the Mufti or the Faqih are the
persons who are experts in their areas, and there is no need to hesitate in accepting their
21
opinions by the people who are common people in their field of specialization."
X. FATWA'S - DECISIONS OF MUSLIM JUDGES
The opinions of Islamic lawyers have always been appreciated. Eventually, even ordinary
Muslims turned to such lawyers and sought his opinion. Such an opinion of a Muslim lawyer
is called a fatwa. However, fatwas are not a legal source of information. Many fatwas have
been known to target a single individual, such as in the cases of Muhammad al-Gaddafi,
Salman Rushdie, Geert Wilders, Jerry Falwell, Taslima Nasreen, Mariwan Halabjee, Ulil
Abshar Abdulla, Farag Foda and Isioma Daniel. There are various societies that regulate the
validity and sanctioning of fatwas - Fatwa Council (United Arab Emirates) Provides online
19 Al Quran 4:59
20 Razi, N., Taqlid A Dilmma for Muslim Intellect: An Analysis in the Light of Contemporary Issues of Muslim
Ummah, Pg. 17, International Islamic University, Islamabad, 2014
21 Nyazee, Imran Ahsan Khan. Nyazee on the Secrets of Usul Al- Fiqh: Following a Madhhab
and Rules for
Issuing Fatwas. Advanced Legal Studies (ALS), p. 27.
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1517 InternationalJournalof Law) Management & Humanities [Vol. 5 Iss 1; 1509]
fatwas, Islamic schools and branches, Islam QA Provides online fatwas, Madhhab, Permanent
Committee for Scholarly Research and Ifta Provides online fatwas, Schools of Islamic
theology and Fatwa on Religious Pluralism, Liberalism, and Secularism
XI. CONCLUSION
The step by step understanding of the sources of Muslim law has been covered within this
paper; therefore, it is imperative to explore the various reasons and methods of such evolution.
The Islamic framework has been introduced in a large scope all over the world, making it more
and more adoptive. We understand from this that even though the law is ever-evolving, Muslim
law is mainly and primarily already developed. Muslim law governs each and every practising
Muslim within the territory of India. However, the jurisdiction to override law within the
country is not given to religions, including Islam. In India, Muslim Law does not override real
law as it varies in different areas. More importantly, the law must not restrict the fundamental
rights of the Indian citizens, and therefore, Indian courts work as remedial courts where there
are conflicts among Indian and Muslim Law. Furthermore, we see a vast improvement in the
situation of women when we apply lex terrae.
© 2022. International Journal of Law Management & Humanities [ISSN 2581-53691
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