SL 2103: PRINCIPLES OF ISLAMIC JURISPRUDENCE II

Sources of the Shari’ah (Indicators of the Law)

Textual (Revealed):
The Qur`an: Characteristics of legislation.
Qur’anic Legislation in Modern Context

Abstract
The present article is an article to analyze the unique and unmatchable Qur’anic
legislation in its modern context. This article throws light on the brilliant and genuine
legislative characteristics and techniques of Qur’an. It aims to explore critically the
Western intellectuals’ impact regarding Islamic law and Qur’anic legislation. Islamic law
and its system of legislation are being claimed as retard and impractical in the
contemporary world. In fact, the Qur’anic legislation made by the Supreme Law-Giver is
distinguished in many aspects from any other kind of man-made legislation. The
modern techniques of legislation are incapable to compare with the variety of
techniques and characteristics of Qur’anic legislation. Lastly, it concludes that it was
only due to stagnation of Islamic legislative function or ijtihad for last few centuries that
cause for such allegations from the scholars of
modern world. Hence, it is need of time to re-interpret and re-construct social,
economical and legal legislations according to the context based on the general
principles of Qur’an and Sunnah through ijtihad.

Introduction:
The Qur’an comprised of speeches of Allah, has been revealed to the last Prophet from
the beginning of his prophet hood in the year 609 A.D., until shortly before his death. It
is defined as Book of Allah revealed to his Apostle, Muhammad (peace be on him),
written in masahif in Arabic language, transmitted to us through an authentic
continuous narration without doubt. This revelation is to be divided in to two parts,
Meccan part and Medinese part. The earlier legislation of Qur’an was made in Mecca and
concentrated on two subjects: First, it aimed to reform the corrupt beliefs of the people;
and secondly, to implant an excellent morality and up-right principles sanctioned by
Islam. Here the Qur’anic legislation called the people to the unity of God. It discarded the
idols worship and ensured that there is no submissiveness, humility, and worship to
anyone other than to Allah. This portion of revelation was consisted of the unity of God,
stories of past nations, and the matters of reward in form of paradise and hell. The
People, who denied accepting Qur’an from Allah, were challenged to bring any similar
verse of Qur’an if they could. No legal enactment was made during that period; the only
legal order which issued was about the obligation of prayer. Medinese part started from
the migration (Hijrah) of the Holy prophet and ended at his death in 632 A.D.

In that period the legislation was primarily concerned with the organization of Muslim
state. Majority of social, economical and legal orders were revealed during this period.
The last three pillars of Islam were revealed. The consumption of Pork, intoxicants, dead
animals and blood were declared prohibited. The punishments for adultery, fornication,
murder, theft, robbery were fixed. During the Meccan period, the Muslims were
forbidden to take up arms against the Meccan people. The order to fight with the
enemies of Islam was revealed in Medina. God declared: “And fight in the way of Allah
with whom who fights with you, but transgress not the limits”.

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The relationship between Makkan and Madinan legislation was that of the roots of a
tree
and its branches. Each piece of legislation had specific address and a central theme
around which the content of the surah revolved. The legislation in Qur’an comprised of
surahs which further divided in to sections, sub-sections and paragraphs; the
connection has been created through various literary devices, like similes, comments,
conditional statement, parenthetical statement, principal statement, warnings, question
and their answers, not only these but have a conclusion of theme. Makkan legislation
was prominent due to fundamental principles of Shari’ah while in Madinan legislation
legal rules related to the human conduct were established. Several legislations were
made in order to tackle the political, economical issues with Christians and Jews. Some
legislation was made by Allah to expose the plots, conspiracy of hypocrites and warned
them while others laid down the foundation for the laws concerning apostates.

The main theme of Qur’anic legislation was particularly an appeal to faith and the
human soul rather than a classification of legal prescriptions. It focused to establish only
guiding and general principles of Shari’ah and left the detail to human agency to
construct and to apply them according to the need of time and circumstances. Such
prescriptions are comparatively limited and few in number. Regarding family law there
are laid down seventy injunctions; civil law in also in seventy. Thirty provisions are
relevant to penal laws; jurisdictional and procedural laws are thirteen. Only ten
injunctions deal with constitutional law and twenty five are related to international law;
economical and financial orders in ten.

1. Modern techniques of Qur’anic legislation.

The Qur’an is characterized with a gradual revelation. The verses of the Qur’an were
generally revealed to solve the problems which confronted Muslim Ummah. The
Qur’anic legislation adopted rational and natural arguments concerning an issue and
then reinforced them by historical and circumstantial examples. The aim of Qur’anic
legislation was to reform the corrupt believe, standard of morality and the whole social
order and custom prevailing in pre-Islamic Arabia. The Qur’anic legislation is comprised
of a variety of techniques and characteristics which have been enjoined by Ummah in
every period of time. These characteristics hold all those qualities which any of modern
legislative body possesses.

1.1 Legislation based on the general principles.

The laws created by Qur’an are based on wide and general principles. They do not
contain so many details as to create difficulty for believers. These general principles
are suitable for all times and in all circumstances. For example a general principle
concerning moral values is: “O! Believe, fulfil your promises.”To facilitate people in their
business transaction, God said: “O! Believe do not eat up your properties among your
selves unfairly, except you have trade by mutual understanding.”

Thus, for civil matters or contracts, the major concerned is given on the mutual consent
of the parties, and this golden rule envisaged in the text of Qur’an which was never
existed in any other law of the nation at that time.

And this golden rule was considered a complete unprecedented in the history of the old
[Link] the Qur’an and Sunnah are inclined towards establishing general
principles which later provided a direction to the compilation of Islamic jurisprudence.

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On the other hand Jurisprudence as formal science was developed in England by
Hobbes, Bentham and Austin during nineteenth century. Germy Bentham founded the
English AnalyticalSchool. Austin (1750-8159) defines law as the command of supreme
Law-making power in the state which does not need divine sanction.

1.2 Legislation based on the Constitutional Law.

Constitutional law consisted of legal rules which define the powers and authorities of
different organs of the government of a country.
These are the manners through which a particular society constitutes and runs different
organs of the state in the light of its constitutional characteristics. The Islamic
constitutional law comprises of divine guidance. It is a composition of ideology, beliefs
and basic principles for the structure and function of an Islamic state. God declares: “For
every one among you, We have prescribed a law and code of conduct.”

The Islamic law of constitution is based on two foundational principles, the first is the
complete rule of law and the second is representative form of government. These
foundations were laid down by Qur’an fourteen hundred years ago when all around the
divine rights of king and dynastic rules prevailed.

In the field of criminal law, Islam established the rule of personal liability, and does not
recognize the rule of vicarious liability and states: “everyone is held in pledge for what
he has earned.”

1.3 Provisions to provide delegated legislation

By describing only general principles, God blessed his believers by giving them
authority to decide the detail of these guiding principles according to the needs of time
and people. Islam left a wide field for human enactment and gave them choice to
legislate and to enact by this delegated power of legislation. A wide area of human
conduct has been declared permissible. It is this reason that bulk of questions is
discouraged by Islam. God said: “O! Believe, do not ask about things which if made plain
for you, will cause trouble for you.” Holy Prophet said: “The Muslims who committed
the gravest offence against Muslims are those who asked about things which were not
prohibited, but which became prohibited because of their questions.”

Contrary to this, the concept of delegated legislation in Western legal system was
introduced in eighteen century. It was first welcomed on the ground that the Parliament
was overloaded and by granting some of its powers to ministers and local governments,
the Parliament was there by be able to deal with the issue of importance while the
detailed could be settled departmentally.

1.4 Legislation to reform the existing laws

The Qur’an itself pronounces that it aims to reform human condition and society. Islam
never tried to remove all existing laws of a society, rather than it aims to remove the
evils of those laws and to make them beneficial for all.

The system of trade and business was reformed by certain Qur’anic legislation. For
example, The Arab used to lend out money on interest on certain ratio and for a certain
period and if that time lapsed and the borrower could not pay back money then the
ratio of interest had to increase. This usury was known as Riba which led to unfair
advantage
for the lender. The Qur’an prohibited it by saying: “ O you believe! Eat not riba . ...”

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And God declared: “Because of their saying that trade is like riba, whereas Allah has
permitted trading and forbidden riba.”

1.5 Legislation to adopt customary laws

Islam did not profess to repeal entire customary laws of Arab and to replace it with a
code of new laws. The ground work of Islamic legal system, like that of other legal
system is to be found in the customs and usages of the people among whom it grew and
developed. For the development and protection of the family system, the Qur’an
adopted customary laws relating to marriage, divorce, parentage, and inheritance
through amendments. For example, ten types of marriage were customized at that time,
but Islam sanctioned only one of them which is happened when one party, male or
female, offers to second party to marry with him/her, if the second party accepts that
offer then a contract of marriage is to be held and a certain amount or thing is specified
by the husband as dower of his wife. Fornication also declared forbidden by Qur’anic
legislation due to its exploitation of women and destruction of family bonds. It was
revealed: “Female adulterer and male adulterer punish each of them with hundred
stripes.”

1.6 Legislation based on the public utility.

The fundamental principle of Qur’anic legislation is to remove pain from the people and
to ensure pleasure for them. This principle is based on the approval and disapproval of
every action of human being. Its criteria have been established by the Law-Giver
himself. To ensure it God said: “Allah does not burden a soul with more than it can
bear.” And said: “Allah wishes to lighten your burden, for man was created
weak.”Seeking utility and removing harm are the basic purposes at which the creation
aims and the goodness of creation consists in realizing their goals. This means the
preservation of the objectives of Shari’ah which consists of five things: preservation of
religion, preservation of life, preservation of intellect, preservation of progeny and
preservation of property. What ensures the preservation of these five principles is
called utility and whatever fails to preserve them is called harm (mafsidah) and its
removal is utility.

1.7 Legislation based on the doctrine of necessity

The Qur’an adopted the doctrine of necessity when other nations of the world were in
dark regarding the legality of this doctrine. In case of necessity, a prohibited thing
becomes permissible to the extent of removal of that necessity. For example, keeping
fast of Ramadan is an obligation for Muslims, God declares: “O! Who believe, fasting has
made compulsory for you as prescribed for those before you in order that you may be
conscious of God.”

But in case of necessity it may be postponed until that necessity finished. It is declared:
“(Observing fast) for a fixed numbers of days, but if any of you is ill or on journey, then
fulfill counting in later days.” Similarly God permits to shorten prayer during journey.
Moreover, God declares: “Forbidden to you dead animals, blood, pork, animals
slaughtered in the name of others than Allah, animals killed by strangulation or a blow
or a fall or by being gored...”

The consumption of these prohibited substances becomes permissible in case of grave

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necessity for sake of life. God announces: “But if anyone is forced by hunger, with no
inclination to transgression, Allah is indeed for giving most Merciful.”

1.8 Direct answers to the questions

A number of Qur’anic verses are the direct answers to the questions raised by people of
that era. Many of these begin with the phrase like ‘they ask?’ Sometimes Muslim and
non-Muslims of the society had to ask different questions concerning the status or hukm
of any matter. The Holy prophet did not answer them until he found some revelation or
indication from Allah Almighty. Once, the people asked about fighting during the
forbidden months. Allah Almighty revealed the following verse: “They ask you about
fighting in the forbidden months. Say, fighting in them is a great offence, but blocking
Allah’s path and denying Him is even graver in Allah’s sight.”
On another occasion the people asked about the hukm of taking wine and other things.
To answer them, God revealed: “They ask you about wine and gambling, Say! There is a
great sin in them as well as benefit for men, but the sin of them is greater than their
benefits.”

1.10 Legislation in case of emergency

There are number of legislative provisions related to the factual reality of a case or
incident when happened. In pre-Arab society, different kinds of divorce were prevailed.
One of them was Zihar, if a husband had to pronounce that his wife was to him like his
mother’s back. It would become cause of separation between them. The Holy Prophet
had accepted Zihar as valid form of divorce and in one case asked a female companion
to accept it. However Allah declared it invalid by saying: “Allah has indeed heard the
statement of the woman who disputed with you regarding her husband and carried her
complaint to Allah, Allah hears yours discussion. Surely, Allah hears and sees all things.
If any man amongst you declares their wives like their mothers, they can not be their
mothers. None can be their mothers except those who gave birth to them. They use bad
words and falsehood

1.11 Legislation based on International Law.

International law means the law which governs the conduct of different states among
themselves. The international law of Islam is based on the text of Qur’an: “To each
among you, We have prescribed a law and a clear way, . . .He may test you in what. He
has given you; so compete in good deeds. The return of you all is to Allah.” The idea of
“Two Nation Theory” is also created by God Himself. It is stated in Qur’an: “Who has
created you; so some of you are non-believers and some of you are believers.”

This text presents a clear definition of a nation, and according to which the Muslims of
the whole world constituent one nation, while non-Muslims are another nation. The
international relations of the Muslims being one with other nations of the world can be
set up only by declaring the oneness of mankind on the basis of equality. In the human
history, Muhammad b. Hassan Shaibani was the first who wrote a comprehensive book
on this subject, named as “Kitab Siyar al-Saghir”.
The term used by Muslim scholars for International law is “Siyar” which is the plural of
‘sirah’ means the attitude adopted by the rulesr towards alien in the state of war and
peace. This is the principle without which no international law exits, for what is the use
of international law if it does not aspire to cultivate harmony among nations.

On the other hand, the International Charter of fundamental rights was introduced by
UNO in 1948 for the first time in the constitutional and international history of the laws
of the world.

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1.12 Legislation based on fundamental rights
The principle of fundamental right means the basic rights of human being necessary for
his survival in the world. It has been defined clearly by the Qur’an. It is stated:
“mankind! Be dutiful to your Lord, Who created you from a single person (Adam), and
for him (Adam) created his wife, and from them both He created many men and women;
and fear Allah through. Whom you demand (your mutual rights).” This text provides a
basic and fundamental principle of equality of International law. It indicates that
international relations can be set up and peace can be achieved and maintained only by
becoming good to the other nations of the world, and removes all types of inferior and
as well as superior complexes of the nations by declaring them the children of one
parents. This rule provides a fundamental rule of equality of all human beings
irrespective of the race and religion, and colour etc. Another text declares: “And
mankind was not but one community, then they differed.”

Article 25 of the constitution of Pakistan explains that all citizens are equal before law
and entitled to equal protection of law. And there shall be no discrimination on the basis
of sex. Then Qur’an does not impose compulsion on the citizens of an Islamic state to
adopt any religion. It is stated: “There is no compulsion in religion . . .” The people are
free to adopt any religion, but once they adopt Islam, they have to abide by its provision
and then no escape from Islam. God said: “O you believe! Enter perfectly in Islam and
follow not the footsteps of Satan. Verily, he is to you a plain enemy.”

1.13 Legislation to provide Objectives of Shari’ah The Shari’ah has been placed for the
benefits of people. The identification of the interests of man has not been left to the
reason and desires of human beings, rather than all the purposes seek to establish and
maintain life in this world to serve the interest of the hereafter. God declares: “We have
not created Jin and Ins (human being) except that they should worship me.”

And God said: “Do you think that We had created you useless and you would never
brought back to me.” Thus the primary purpose of Shari’ah is to secure the interest of
man that pertains to the hereafter. These purposes are further sub divided in to two
types; that are worldly purposes and the purposes of the hereafter. For example, the
preservation of life is dependent upon the prohibition of unfair murder and on
permission of retaliation in case of murder. The preservation of progeny is dependent
upon the permission of marriage and upon the prohibition of fornication.

1.13 Legislation to provide principle of abrogation

Qur’an has introduced the principle of abrogation. This principle based on the need of
time and people. God may prescribe a law suitable to the people at the time of its
enactment, or it may serve a particular limited period. However, if its purposes have
been achieved or its suitability may later disappear. In such circumstances the needs
for the laws cease to exist and its validity becomes uncertain.
For example, in pre-Islamic Arab culture, the property of deceased person would only
inherit if a bequest was made. thus in the early stage of Islam, God confirmed that law
by saying: “It is prescribed that when death approaches any of you, if he leaves property
behind, he has to make a bequest in favour of parents and next of kin, according to the
custom, this is due from the pious.” Later, this order was repealed by Allah almighty
and a comprehensive and detailed policy of the shares of heirs was introduced. Similarly

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the widow’s waiting period was one complete year. It was the duty of husband to make
a bequest for maintenance in favour of his wife. God prescribed: “If any one of you die
and leave widow behind, a bequest of a year’s maintenance and residence should be
made for his widows...” Then by another enactment the waiting period was reduced to
four months and ten days:” If any one of you die and leave widow behind, they shall wait
regarding themselves four months and ten days.”

1.14 Provisions to provide second source of legislation

The Qur’anic legislation provides a second source of legislative process that is Sunnah.
The Holy Prophet (peace be on him) was assigned the duty to convey the final message
of God to human being and to legislate laws according to circumstances and given
situation of a case. The term Sunnah means the saying and actions of Holy Prophet as
well as His tacit approval and actions of His companions which did not meet His
disapproval are also considered part of Sunnah. God declares:” He (Holy Prophet) does
not speak from his desires. Verily, it is inspiration which has been revealed.”

The Holy Prophet performed this function in different ways. Some time he had to just
explain the Qur’anic text by making a statement. At other time he would explain the text
by his action before people, for example God declares the oblation of prayer but with
out its details and did not described the how prayer should be performed. It did not
state the time and numbers of prayers. So the Holy Prophet elaborated every ambiguity
related to prayer and prayed among his followers and said: “Pray as you have seen me
pray.”

Some times Qur’anic text give a generals law only, then Sunnah clarify its generality and
specify its intended meanings and lays down some additional rule that is not mentioned
in the text. God declares:” He made lawful for them the good (pure) things and forbade
them the bad (impure) things.” This is a general principle given by Law Giver regarding
pure and impure things. The Holy Prophet clarifies it by prohibiting the eating of the
flesh
of monkey. Some times a rule is laid down by Sunnah which is a quite new rule. It is
neither an explanation of an ambiguous text nor a specification of general rule, and nor
a qualification of an absolute rule. For example, God declares:” The hunt of the sea has
been made lawful for you and its good.”

The carrion remained unexplained by the Qur`anic text. The Holy prophet solved this
problem by saying:” Its water is pure, its dead are permissible.” In this way the Holy
Prophet performed the function of legislation as chief judge and legislator. However, he
left the task of legislation of worldly affairs to the disposal of his companions. He said,”
Iam a human being. So when I tell you to do some thing pertaining to the religion accept
it, but when I tell you something from my personal opinion, keep in mind that I am a
human being. Then he added,” You have better knowledge in the affairs of this world.”

Similarly, His performance as judge with regard to the dispute brought before Him has
no binding force. It is reported from Umm-e-Salma that Allah’s Messenger said:” I am
only a human being and you brought your disputes tome. Perhaps some of you are more
eloquent in their plea than others, and I judge in their favour according to what I hear
from them. So whatever I rule in any one’s favour, which belongs to his brother, he
should not take any of it, because I have only granted him a piece of Hell.” To sum-up,
the characteristics and technique of Qur’anic

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legislations bear not only all the attributes which may tribute to any up-dated and
modern legislative body but alsothey have amazing capacity to be modified and
constructed according to the needs of time to solve the contemporary issues of Muslim
Ummah. No other legislation has this capacity to accommodate changes of every time.

2. Misconceptions regarding Qur’anic legislationand Islamic law

The claim for the divine nature of Islamic law has created some misunderstanding
among Western-European scholars whereby the specific terms of the law came to be
expressed as the irrevocable Will of God. It is fact that the divine concept of Islamic law
has made the Western-European scholars confused who studied Islamic law just as the
set of religious duties pure and simple.
A major study of Western-European scholars about Islamic legal system contends that
after a brief and brilliant career, lasting about two centuries Islamic law fell into a
decadence and intellectual paralysis from which it never recovered. The further
development of Islamic law came to a halt with the creation of four authoritative
schools of law and the gates of free interpretation were closed, as the Muslims
themselves were supposed to have put it.

For example, N. J. Coulson, a Western scholar studied Islamic law as an isolated and
impractical law irrelevant to the worldly affairs. He argues: “Islamic law was and
remained merely theoretical structure. The Muslim jurists desired to disassociate
themselves from the corrupt of the system and they were not agreed to put it into
practice. For them Shari’ah represented a religious ideal, to be studied for its own sake
rather than applied as a practical system of law. The Western scholars studied Islamic
law as authoritarian to the last degree. For them the Islamic law cannot be other than
the will of God, revealed through the prophet. It cannot be separated in conception from
duty, and never became fully self-conscious. The Shari’ah just remained as a discussion
on the duties of Muslims.”

Another theory of misconception regarding Islamic law is that due to its extremely
religious nature, a deep cleavage came into being between the Muslim jurists and the
states, with each sides going its own way. The state disregarded in practice what came
from the pen of the jurists, and the latter developed an attitude of extreme contempt
towards the state and the world of the social reality in its entirety. It is claimed that the
works of Fiqh are full of disparaging judgments on conditions of the present day. What
the people cling to as usage and custom is abuse and evil in the eyes of God The
administration of justice everywhere is nothing but a public mockery of the divine laws
referring to it. All that came thereafter was imitation and Islamic law became immutable
in all its details

The view of Western-European scholars concerning the powers of a Muslim judge is

that the qadi or Muslim judge had great and unguided discretion and he depended
simply on his own whim and wish for the equities or he acted on his own prejudicial
opinions of the matters. For them, there is no general concept of tort and contract in
Islamic law around which judges and scholars could refine their conceptual categories
as logic or concrete examples.
Not even this but the Muslim Jurists were being criticized for their style and way of
judgments even by Western-American judges. Justice Felix Frankfurter once remarked
that the United States Supreme court “is not a tribunal unbounded by rules. We do not
sit like a Kadi under a tree dispensing justice according to the consideration of

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individual expediency.” This blind study of Islamic legal system led the Western-
European scholars
to characterize Islamic law as opposed to Anglo–American common law, European civil
law and Roman-Canon law as lacking rigorous set of logical links among the various
aspects of over all the body of the law. They have generally remarked on the doctrinal
rigor and the presence of inordinate discretion. For them Islamic law unstructured, run
more by intuition, directed at best by culture or mores than by rigorous reasoning.

For instance, the fundamental tenet of Rosen’s theory is based on the diametrical
difference between the Islamic law and Western law. Thus, he says for example: “The
common law of England could employ a specifically artificial reason in order to separate
the courts further from the executive power of the state, and by thus mystifying the law
various social groups, including the bench and bar, could further the role of law as a
protection against state intrusion on their on proprietary interests. In Islamic law by
contrast, the courts have long operated not as a counterbalance to the state but as a
stabilizing device among contending persons, an instrument by which the individual,
within broad doctrines developed by the law, could seek the rough equivalence of
unimpeded bargaining stance through a court that helped to ensure this vision of the
individual personality.” Rosen’s theory has been heavily criticized for its omission of the
world of written Islam. No doubt, Islamic law has its origin in divine Shari’ah but it does
not mean that any future legislation in Islamic legal system is neither required nor
possible. A view regarding Islamic law is that in contrast with legal systems based upon
human reason such a divine law possesses two major distinctive characteristics.

Firstly: it is a rigid immutable system, embodying norms of an absolute and eternal

validity, which can not be susceptible to modification by any legislative authority;
Secondly, for many different people who constitute the world of Islam, the divinely
ordained Shari’ah represents the standard of uniformity as against the variety of legal
systems which would be the inevitable result if law were the product of human reason
based upon the local circumstances and the particulars needs of the given community.

This view show that Shari’ah contains no law in the modern sense of a flexible law when
measured in terms of the rigidity and uniformity and that the Shari’ah has no place for
arguments and difference of opinion, hence cannot be applicable to different people of
different localities and places. Contrary to these views, Shari’ah is a mixture of rigidity
and flexibility. It has a wide area of flexibility to adjust and to cope with different
circumstances in different localities. The legislative portion of Qur’an presents a
principle ofijtihad for amendments and legislation to accommodate new issues based on
public interest for the sake of Ummah. In Islamic legal system, law and religion works
together and cannot be separated in any sphere of life. Law in modern sense is not
different from the concept of Islamic law. Islamic law consisted of all qualities of law as
considered in
the Western-European legal system. Some Western scholars claimed that many Muslim
states are forced to cast set aside Shari’ah and to adopt Western laws on social and
economical grounds. According to this view, Islamic jurisprudence may successfully
tackle the problems of law and society if it is freed from the notion of religious law
expressed in the totalitarian and uncompromising terms. For law to be a living force
must reflect the soul of society.

In fact, the development of Islamic law and society had four stages of social evolution:

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(i) At Firststage Divinelegislation intended to civilize the culture and social attitude of
the people. There were primitive societies which were not yet civil and lived in the
forests or mountains. At this stage the purpose of divine legislation was to reform their
existed laws and not to confound the people with new things with which they are not
familiar;
(ii) Second stage started when they begin to form a civil society;
(iii) The third stage evolved when the people founded a new state, conflicts appeared
and the people needed for an authority to administer and to settle their disputes;
(iv) The fourth stage started when disputes rose among different units of the state and
the people realized a need for a ruler to regulate the affairs among different cities of the
state.

There are some distinguished characteristics of Qur’anic legislation which cause some
fundamental differences between Islamic legislative process and legislation under
Western legal system:
(i) Western legislation considers the religion as a private affair between man and God.
Islamic law is not entirely a private affair. It is ruled by a code of law which is binding on
all. There is no sanctity in a man or a class of men regarding the relationship between
men and God;
(ii) The most important distinction of Islamic legislation is that an Islamic Government
has no power to legislate arbitrarily. It must legislate according to the limits prescribed
by Shari’ah. In matters where there is room for ijtihad and legislation, it has a right to
legislate, but not in such manners as to against the spirit of Shari’[Link] the Western
legislative system, the will of the majority whatever it will, becomes law.
(iii) In Western legal system, the law is too flexible to apt to develop with the
development of the affairs of the society and to change in response to the ever-changing
requirements of social life. It is not possible for law to remain static, while the life which
controls it is always on the move. On the other hand the Islamic law is based on certain
universal fundamental principles of religion which are not dependent upon the wishes
and trends of people. Islamic law can be changed with the changes of life and time but
within the sphere of objectives of Shari’ah. The diversity of juristic opinion should be
considered as an active sign of the flexibility of Islamic law.
(iv) The existence of the doctrine of stare decisis or binding precedent in English law
refers to the fact that the courts are bound by the previous decisions of the courts equal
to or above them in the court hierarchy. The precedents lead to uncertainty; fixity; and
constitutionality. In practice judges avoid precedent through either overruling or
distinguishing them. Only the House of Lords can overrule its own previous rules, while
the court of Appeal cannot; Contrary to this the rule of stare decisis is not appreciated
by Muslim jurists. There are number of examples in the history of Islamic law where
judge decided the matter according to the need of the case and over ruled the decisions
made by earlier judges.

(v) The method of Islamic legislation was based on the factual realities not on the
presuppositions and hypothetical issues. Once a companion of the Prophet, Ubbie bin
K’ab was asked his opinion on a hypothetical case. He asked: “Has it happened?” The
person replied: “no” He then said: “Leave us at ease, until it happens. When it does
happen, we shall pass our judgment accordingly.”
This realistic approach means that Shari’ah wants to make the thing easier and flexible
for the people not to create hardship for them.

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Conclusion:
To conclude this article, it is suggested that it was only due to stagnation of Islamic
legislative function or ijtihad for last few centuries that scholars of other nations
claimed Islamic law in contrast with modern legal systems and declared it a rigid
immutable system which cannot be susceptible to modification by any legislative
authority and which has no flexibility to produce law based upon human reason in the
context of the local circumstances and the particulars needs of the given community. We
should not ignore the fact that Islamic law as living law can become much more effective
and patronized in modern framework through legislative process of ijtihad. Islamic law
has been developed through a continuous process of ijtihad. Hence there is need to
reinterpret existing laws which cause hardship for Ummah in the light of the general
principles of Qur’an and Sunnah, so that the Muslim Ummah particularly and other
nations generally avail this unique process of legislation.

Sunnah
Functions and the Position of the Sunnah in Relation to the Qur’an

The Arabic term sunnah means clear path, established course of conduct or way of life.
When sunnah is associated to the Prophet (s.a.w.), by saying sunnatu-rasulilah, it means
the way of life of Prophet Muhammad (s.a.w. ), including his deeds, sayings, tacit
approvals, and to some extent, descriptions of his physical features and moral
behaviour. Closely related to sunnah is the word hadith which literally means report or
narration; conceptually, hadith signifies the reports that are narrated on the authority
of the Prophet (s.a.w.), thus hadith has the same denotations of the word sunnah,
whereby sunnah and hadith interchangeably denote the way of life of Prophet
Muhammad (s.a.w.).

With regards to the position of the sunnah in relation to the Qur’an, besides practicing
the teachings of the Qur’an, which is the founding scripture of Islam, Muslims are also
told to follow the way of life of Prophet Muhammad (s.a.w.). In chapter 33, verse 21, the
Qu r’an characterizes the Prophet (s.a.w.) as a model or good example of life for every
Muslim, while in chapter 3, verse 32, the Qur’an makes it clear that those who wish to be
obedient to Allah (s.w.t.), should also be obedient to the Prophet (s.a.w.). In chapter 16,
verse 44, the Qur’an also mentions that the duty of the Prophet (s.a.w.) is to explain the
Qur’an (litubayyina li al-nas), through words, actions or tacit approvals, in such a way
that the sunnah basically forms the practical account of the Qur’anic ideals and values.
These and many other verses of the Qur’an prescribe Muslims to follow and practice the
way of life of the Prophet (s.a.w.). These verses also closely associated the sunnah to the
Qur’an, in such a way that the sunnah becomes the second source of the Islamic
teachings, based on which beliefs, values, laws and conducts are understand and
evaluated. It interprets the Qur’an through different levels:
(1) The sunnah confirms and supports (sunnah mu’akkidah) the teachings of the
Qur’an, in such a way that the Qur’an and sunnah become complementary to each other.
(2) The sunnah interprets (sunnah mubayyinah) the Qur’anic concise terms; either by
providing detailed accounts (tafsil) of the concise words (mujmal) of the Qur’an, or by
limiting (takhsis) the generic terms (al-‘am) of the Qur’an, however, in both cases the
sunnah plays a role of interpreter of the Qur’an; and (3) The sunnah might provide an
independent teachings, which should be in line with the teachings and the message of
the Qur’an, such as those narrations in which the Prophet (s.a.w.) prohibited wearing
silk or golden cloths to Muslim man.

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 For it interprets the ideals of the Qur’an and thus forms its practical account, Muslim
scholars of different schools have unanimously agreed on the principle that the sunnah
of the Prophet (s.a.w) falls in the second position of the list of the shari’ah sources
(masadir al-shari’ah); it comes after the Qur’an.
Furthermore, for it constitutes the second source of the Islamic teachings, the
sunnah became the subject of academic studies since the early age of the Islamic history.
These studies addressed different dimensions of the sunnah, including authentication
and classifications, as well as the studies that highlighted the position of the sunnah in
relation to the Qur’an.

Principles of Authentication and Classification of the Sunnah

Given the fact that by the end of the first century of the Muslim calendar and onwards,
there were, already, thousands of reports which are attributed to the Prophet (s.a.w.),
some of which are forged or fabricated, Muslim jurists and scholars of hadith (report),
who lived in the second and third centuries of the Muslim calendar and onwards, have
endeavoured to establish common principles through which the authenticity of given
reports (ahadith) are established and understood. After sometime of scholastic debates
and dialogues on the principles of hadith authentication, Muslim jurists and scholars of
hadith have categorically agreed on common principles of hadith validation, with some
differences on the details. Generally agreed authentication system of any given report
consists of, among others, the following principles.

1. The teaching (matn) of the report (hadith) which is attributed to the Prophet
(s.a.w.) should not contradict with the Qur’anic text.
2. It should not be against the dictates of reason or the laws of nature and common
human sense (experience).
3. It should not be contradictory to generally agreed principles of Islam (qawa’id al-
shar’iyyah al-amah).
4. The chain of the narrator (sanad) who reported the narration should not be
disconnected (maqdhu’).
5. Narrators (ruwat) of the hadith should be morally upright (‘adl) and with
retentive memory (hifz).

These principles, some of which are derived from religious teachings, while others
appeal to the common sense, are known to have been employed by Muslim jurists
(fuqaha) and scholars of hadith, to authenticate, classify and interpret those reports
(ahadith) which are attributed to the Prophet (s.a.w.). Both the jurists (fuqaha) and
scholars of hadith (muhadithun) had consented on the principle that, in order for a
hadith, any given hadith, to be valid with legal authority, both the narrator (mukhbir)
and the content (mukhbir bihi) have to fulfil the abovementioned common conditions of
hadith authentication. In addition, based on these principles, reports which are
attributed to the authority of the Prophet (s.a.w.) are divided into classes on different
grounds, such as the degree of authenticity, the condition of the chain (sanad) or
number of narrator. For instance, there are cases in which based on the degree of
authenticity, reports are classified into valid report (hadith sahih) and invalid report
(hadith dha’if); while based on the condition of the chain, given reports are classified
into hadith maqtu‘ (disconnected report), hadith mutasil (connected report), hadith

12
marfu‘(elevated report), etc.; whilst based on the number of narrators in the chain,
given reports are categorized into recurrent report (hadith mutawatir), solitary report
(hadith ahad), etc. Generally speaking, to establish the authenticity as well as the
authority of given reports (ahadith), these aspects are all important.

Despite the fact that Muslim jurists (fuqaha) agreed on the position of the Sunnah and
its relation to the Qur’an, however, styles of hadith validation and modes of
classification are matters of disagreement among the Muslim jurists. This is because,
though in principles, jurists (fuqaha) and scholars of hadith agreed on the position of
the sunnah in relation to the Qur’an, however, classifications of reported narrations
(ahadith) into classes, for instance, solitary and recurrent, as well as the legislative
authority of each class, are also matters of disagreement among them. For instance,
Muslim jurists hold different opinions about the legislative value of the solitary hadith,
particularly when it comes to specification (takhsis) and limitation (taqyid) of the
generic terms (‘am and mutlaq) of the Qur’an; some of them are on the view that
solitary hadith has the power to specify the generic terms of the Qur’an, while others
categorically opposed to such view, as analyzed in the following paragraphs.

Solitary Sunnah and Its Implication on Fiqh

The Arabic word ahad literally means solitary or singular. Conceptually, hadith ahad or
solitary report is the narration that is reported by single narrator or odd individuals,
regardless of whether this singularity occurs throughout the chain or at some levels of
the chain. In the general sense, hadith ahad refers to the Prophetic narration “that is
narrated by one transmitter”, in certain stages or throughout the chain of the narration;
however “this understanding is not always accurate.
Ahadis actually defined as a hadith that does not fulfil the requirements of mutawatir”.
The term mutawatir is rooted in the Arabic word of tawatara, i.e., recurrent or
continues succession. In the science of hadith, mutawatir is the report “that has been
transmitted by an indefinite number of people in such a way that precludes the
possibility of their agreement to perpetuate a lie upon the Prophet (s.a.w.)”. Reported
by an indefinite number of narrators, hadith mutawatir signifies a practice that is
repeatedly done or said by the Prophet (s.a.w.), in a way that such saying or practice is
known to a large number of Companions of the Prophet (s.a.w.), some of whom
reported it with its identical form or meaning. The distinction between recurrent hadith
and solitary hadith is: “based on the manner in which the tradition (hadith) has been
communicated from the Messenger of Allah (s.w.t.), to us”; whereby unlike the
recurrent report which reflects widespread incident or saying that has been narrated by
a larger number of people, solitary hadith is marked by singularity of transmission.

Reported by a large number of people throughout the chain, who is not likely to agree
upon a lie, and supported with sensible evidence, the legal value of recurrent hadith
roses high on given issues; it: Curries definite knowledge and prescribe certainty, and
thus its legal authority is the same like that of the Qur’an. The large number of people
involved in reporting the Mutawatir hadith produces certainty in such a way that the
report is without doubt the hadith of the Messenger of Allah (s.w.t.). Unlike the
recurrent hadith, which carries decisive authority on given issues, for it is reported by a
lesser number of transmitters compared to mutawatir, the decisive certainty of solitary
hadith is disputed among the jurists. Some of the jurists, like those of Hanafi School
adopted strict measures on accepting the legal authority of solitary hadith in general,

13
while some of the jurists, like those of Hanbali, Zahiris and to some extent Shafi‘i
Schools, adopted accommodative attitude toward accepting its legal authority. The
jurists’ dispute about the legal authority of the solitary hadith is not about whether
given solitary narrations are weak or not, this dispute is about its reliability and
strength to legislate. In fact for authentication wise, the requirements that the
transmitter of recurrent and solitary narrations has to fulfil are the same, whereby
narrators of ahad and Mutawatir reports must be competent, just and with retentive
memory. In the instances when given ahad narration fulfils these requirements and it: Is
free from obvious and hidden defects, it is adecisive evidence according to the Zahiris
(literalists school of fiqh) and Hambalis (hamabli school of law), but it is less decisive
(i.e., zanni) according to the majority of the madhahib.

Zahiris and Hambalis are on the view that if the solitary hadith fulfils the conditions of
authenticity, the solitary hadith functions as decisive evidence with binding legislative
authority. However, same like the jurists of Zahiris and Hamabalis, the jurists of Hanafi
and Maliki Schools agreed on the principle that ahad narration has to fulfil generally
agreed method of hadith validation, yet to further “verify reliability and strength of the
ahad hadith”, jurists of Hanafi and Malaiki Schools tend to impose some additional
requirements. For instance, narrated by competent, just transmitter with retentive
memory, and free from obvious and hidden defects, ahad narrations, according to the
jurists of Maliki school, should also be in line with the practices of Madinah people
(amal ahl al-madinah). This is because, according to Maliki school, Madinah “practice is
the true reflection of the teachings and sunnah of the Prophet (s.a.w.), and as such it is
more reliable than the reports of odd individuals”. Thus, if the solitary narration
contradicts the practice of Madinah people, then jurists of Maliki School prefer the
practice of Madinah over the solitary hadith Similarly, jurists of Hanafi School have also
laid down a number of additional requirements to verify the reliability of solitary hadith
First, according to jurists of Hanafi School, solitary narration should not contradict the
known actions and practices of its narrator; “should it be known that the narrator (of
ahad.) had actually acted contrary to his own report, this would mean the report is
unreliable. This is because, says Hanafi School, Companions of the Prophet (s.a.w.) are
known to have firmly applied and followed the teachings of the Prophet (s.a.w.) and it is
never been the practice of the companions to narrate a report on the authority of the
Prophet (s.a.w.) and ignore it in practice. Thus, if there is a solitary narration which goes
against the known practices and decisions of its reporter, then the legislative value of
such report demises. It is on this ground, for example, that the Hanafi School does not
rely on the following solitary hadith, narrated by Abu Hurayrah: “If a dog licks a dish,
wash it seven times, one of which must be with clean sand”.
According to the view held by jurists of Hanafi School, this solitary narration is
unreliable, and the reason is because Abu Hurayrah, the transmitter of this solitary
report, “did not act upon it” . According to the jurists of Hanafi School, this particular
solitary hadith also goes against the normal practice of washing impure substances
which is one or three times. Therefore, since the requirement of washing is normally
one, two or three times, and the narrator of this report (Abu Hurairah) does not act
upon it, this solitary report is considered weak, and thus jurists of Hanafi School does
not rely upon it.

Furthermore, this is also one of the reasons of why Hanafi School questioned the
reliability of the solitary report in which male guardian (wali) is required for female
marriage contract, and took the position that male wali is not a requirement for the
validity of female marriage contract. Aishah (r.a. ) reported the Prophet (s.a.w. ) saying

14
that: “No marriage except with a guardian and the ruler is the guardian of she who has no
guardian”. On another occasion, Aishah (r.a.) reported similar narration but with
different tone and words, as follows: “if any woman marries without the permission of
her guardian, then her marriage is void, then her marriage is void, then her marriage is
void” (Al-Termidhiyi,). For Hanafi School, this solitary hadith is unreliable for a number
of reasons, including that the reporter of this narration, which is Aishah (r.a.), does not
act upon it. This report made male guardian a must for the validity of female marriage
contract, however, the narrator of the hadith, Aisha (r.a.), arranged the marriage of her
nice, the daughter of her brother namely Hafsa b. Abdul Rahman, while her brother was
absent during the marriage contract initiation. Aisha’s action in this case seems to be
contradictory to the report that is attributed to her on the need for male guardian to
initiate female marriage contract. As such, for Hanafi School, if indeed Aisha (r.a.)
narrated this report, why did not she act upon it? The fact that the narrator did not act
upon his or her own solitary narration, says the Hanafi School, weakens the reliability
and legislative power of such a solitary narration. For that reason, the Hanafi School of
law does not rely upon this narration, and thus prefers not to include male guardian in
the essential requirements of the validity of female marriage contract.

However, the majority of jurists including those of Shafi’i School, on the other hand, take
the view that discrepancies between the report and the action of the narrator may be
due to forgetfulness or some other unknown factor. They argue that, in the case where
there is a contradiction between the actions of the narrator and his or her solitary
reports, priority would be given to the reports over the actions of the narrator. The
reason is because reports (ahadith) are authority (hujjah) while human actions and
opinions are not; thus what is important is the narration not the narrator’s action. Thus,
“discrepancies of this kind do not, by themselves, provide conclusive evidence to render
the report unreliable”; hence, the sunnah would be evaluated in itself regardless of
narrator’s behaviour. Responding to the Hanafi School’s opinion on this hadith, who is
a prominent Shafi’i jurist, argues that if a narrator (rawi) does not act upon his or her
narration, that does not necessarily make his or her narration void. The reason is
because; the words of the Prophet (s.a.w.) are authority (hujjah), while the actions of
the narrator are not
authority, thus the later cannot nullify the former; provided the report fulfils other
requirements of hadith validation. Thus, according to the jurists of Shafi’i School of law,
the presence of male guardian (wali) to initiate female marriage contract is required;
indeed in the views of Shafi’i School of law, male guardian is a must prerequisite (shart)
for the validity of marriage contract; and any marriage contract that is done without
male guardian (wali) is null and void. This is due to the fact that, jurists of Shafi’i School
of law and others accepted the legislative authority of this solitary report, and thus
concluded to the opinion that a female needs a relative male guardian to represent her
in the marriage contract, otherwise her marriage will not be valid. Second, according to
Hanafi School of law, solitary hadith should not contradict with apparent (literal)
meaning of the Qur’anic text (zahir al-nass). This condition (shart) is a general
requirement upon which every narration, both recurrent and solitary reports, are
validated, however, Hanafi School of law gives greater emphasizes to this condition
(shart) on the validation of solitary narrations. The reason is because, the text of the
Qur’an forms decisive certainty, while solitary narrations, says Hanafi School of law, do
not constitute firm certainty, thus the latter should not, in any form, explicitly or
implicitly, run-counter to the former. This is the reason why Hanafi School of fiqh, for

15
instant, questions the reliability of the solitary hadith that states: “no marriage may be
made without the presence of a guardian”.
Besides the fact that this hadith contract with the known practices of its reporter, as
mentioned earlier, according to Hanafi School of law, the teachings of this hadith seems
to be different from the apparent meaning (zahir al-nnas) of the Qur’anic texts such as
verses in chapter 2, verses 230-231, and chapter 2, verse 240, which, according to the
jurists of Hanafi School of fiqh, explicitly permit woman to initiate her marriage contract
without male guardian. Thus the legal authority of the abovementioned narration in
which the male guardian is required for the female marriage contract is questioned. The
Hanafi School of law is on the view that since woman is permitted to initiate other
contracts, such as selling and buying, without referring to a male guardian (i.e., brother
or any other male relative), she can also initiate a marriage contract as well, without
male guardian.
Third, among the additional conditions laid down by Hanafi School of law to accept the
reliability and the legal authority of the solitary hadith is that the subject matter of the
solitary narrations should not be a matter “that would necessitate the knowledge of a
vast number of people”. For instance, if we receive an information attributed to the
Prophet (s.a.w.), by means of solitary chain, of an action of the Prophet (s.a.w.) which is
supposed to be known by a vast number of people (ma ta‘umu bihi al-balwa), probably
hundreds or thousands, yet one or two have narrated it, the legislative value of such
report is challengeable. For this reason the Hanafi School of law questioned the
legislative authority of the solitary narration which states that: “anyone who touches his
sexual organ must take a fresh ablution”. The Hanafi School argues that, had this Hadith
been authentic, it would have become an established practice among all Companions of
the Prophet (s.a.w.), which is not the case; hence the Hanafi School does not rely upon
this narration. Nevertheless, the Shafi’i School of law does accept the legislative
authority of this narration, and holds that the people who witness or observe an
incident do not necessarily report it; they argue that there are incidents in which
countless people witnessed, like pilgrimages (hajj), but only few of them reported their
observations. As such, for Shaf’i School of law, to insist of this kind of requirement for
the reliability of the solitary hadith makes no sense, thus they tend to accept the
legislative authority of this solitary narration.

Fourth, the solitary hadith should be in harmony with the renowned narrations (al-
sunnah al-mashhurah). Discrepancies between famous reports (al-sunnah al-
mashhurah) and solitary hadith, says the Hanafi School of law, make the legal authority
of solitary hadith unreliable. It is on this ground that the Hanafi School of law does not
rely on a number of reports including the report on witness (shahid) and swearing
(yamin) on the part of the accuser, which according to Hanafi School of law contradicts
the famous report that requires witness from the accuser and swearing from the
accused.

Fifth, another additional requirement imposed by the Hanafi School of law on the
acceptance of solitary hadithis that solitary hadith should not contradict with analogical
reasoning (qiyas); however, in the cases whereby the solitary report contra dicts
analogical reasoning, if the narrator of a given solitary hadith is not a faqih (jurist), then
Hanafi School of law prefers qiyas over solitary narration.

The Hanafi School of law holds that when a narrator of solitary hadith is not a faqih
(jurist), his report is accepted only if it agrees with qiyas, otherwise qiyas would be
given priority over ahad. However, if the narrator is known to be faqih, such as the four
rightly guided caliphs (khulafa’ al-rashidin), then his solitary report would be preferred

16
over qiyas. It is on this ground that the Hanafi School of law has questioned the
legislative value of the hadith reported by Abu Hurayrah (r.a. ) on selling the animal
whose milk is retained in its udders (musarrat) so as to impress the buyer.

Ijma’/Consensus and It's Legal Position

Abstract

Ijma’ is an important mode of Ijtehad and well known principle of Islamic Sharia.
Historically it is evident that incidence of IJMA’/Consensus restricted, only to four
Caliphates of Islam only. Many jurists and scholars denied its incidence absolutely and
some others have been of the opinion that it is only restricted to Medina, Basra, Kufa.
Some restrict it to Ahl-e-Bait only. In this paper it is concluded after the academic
discussion and analysis of the opinions of many experts of Islamic Jurisprudence;

1. Actually the consensus on many legal issues in the period of companions of the Holy
Prophet was with mutual consultation and basically it was the "Collective Ijtehad",
which had been known as "IJMA’" at that time. The term "Collective Ijtehad," was not in
use at that time.

2. This Collective Ijtehad and Collective Opinion was actually the decision of the Islamic
State followed and obeyed by the all Muslims specially by "SAHABA," so why it's called
Ijma’-e-Sahaba.

3. These decisions were applicable and binding to all Muslims living elsewhere in the
world, because at that time there was centralized ruling system (Khalafat-e-Wahida).

4. Now Muslim world has split into many states, so every state has its own decision
making institutions and hence such Ijtehad and Ijma’/Islamic Legislation Activities
should be validated within those states as Ijtehad and Ijma’ except issues relevant to
general interest as whole human being and all Muslims. In such issues International
level consensus of Islamic Jurists would be required. In the paper it is also concluded
that "Collective Ijtehad" should be dealt as "IJMA’," actually it is the same processes.
More over any "Ijma’"/Consensus held in a time period can be revoked by any new
situation in future as per requirement of the time. It is the inevitable demand of
dynamism of Islam to correlate it to every need of the time.

Definition of Ijma’

In linguistic terms, ijma’ (consensus) means resolve and agreement.

In shar‘i terms (consensus), it means the agreement of the mujtahids of this ummah
after the death of the Prophet (blessings and peace of Allah be upon him) on a shar‘i
ruling.

This infallible agreement of either the Muslim community as a whole or Muslim scholars
in particular. The consensus - sometimes justified through a saying from the Hadith
(traditions of the sayings and actions of Muhammad), “My people will never agree in an
error”

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In Muslim history, ijmāʿ has always referred to consensuses reached in the past, near or
remote, and never to contemporaneous agreement. It is thus a part of traditional
authority. Ijmāʿ also has come to operate as a principle of toleration of different
traditions within Islam. It thus allows, for example, the four legal schools (madhhabs)
equal authority and has probably validated many non-Muslim practices taken into Islam
by converts.

The doctrine of ijmāʿ, or consensus, was introduced in the 2nd century AH (8th century
ce) in order to standardize legal theory and practice and to overcome individual and
regional differences of opinion. Though conceived as a “consensus of scholars,” ijmāʿ
was in actual practice a more fundamental operative factor. From the 3rd century AH
ijmāʿ has amounted to a principle of stability in thinking; points on which consensus
was reached in practice were considered closed and further substantial questioning of
them prohibited. Accepted interpretations of the Qurʾān and the actual content of the
Sunnah (i.e., Hadith and theology) all rest finally on the ijmāʿ in the sense of the
acceptance of the authority of their community.

Ijmaa’ counts as evidence on the basis of a number of pieces of evidence, including the
following:

1. The verse in which Allah, may He be exalted, says (interpretation of the meaning):
“Thus We have made you (Muslims), a Wasat (just) (and the best) nation, that you be
witnesses over mankind” [al-Baqarah 2:143]. The words “witnesses over mankind”
include testifying about their deeds and judging their deeds, and the words of the
witness may be accepted.

2. The verse in which Allah, says (interpretation of the meaning): “(And) if you differ in
anything amongst yourselves” [an-Nisa’ 4:59] indicate that whatever they agreed upon is
sound and correct.

3. The Prophet (blessings and peace of Allah be upon him) said: “My ummah will not
unanimously agree on misguidance.”

4. We say: If the ummah unanimously agrees on something, it must be either true or

false. If it is true, then it is proof. If it is false, how can this ummah, which is the dearest
of nations to Allah since the time of its Prophet until the onset of the Hour, agree on
something false with which Allah is not pleased? This is quite impossible.

Types of ijmaa’

Ijmaa‘ is of two types: definitive and presumptive.

1. Definitive is that which well known and well established, such as consensus that the
five daily prayers are obligatory and that zina (fornication, adultery) is haraam. No one
can deny that this type of ijmaa‘ is proven and established, or that it constitutes proof in
and of itself, or that the one who rejects it becomes a kaafir, unless he is ignorant and
may be excused for his ignorance.

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2. Presumptive is that which can only be known by means of research and study, where
the scholars may differ as to whether is ijmaa‘ (on a particular issue) or not. The most
correct scholarly opinion concerning that is the view of Shaykh al-Islam Ibn Taymiyah,
when he said in al-‘Aqeedah al-Waasitiyyah: “The type of ijmaa‘ that is to be accepted is
that of the righteous early generations (as-salaf as-saalih), because after their time there
was a great deal of disagreement and the ummah spread far and wide”.

It should be noted that the ummah cannot agree on something that is contrary to an
unabrogated, clear, saheeh text, because it can only agree on what is true. If you see
consensus that you think is contrary to that, then it must be one of the following: either
the evidence is not clear, or it is not saheeh, or it is abrogated, or there is a difference of
opinion concerning the matter of which you were not aware.

Conditions of ijmaa’:

There are certain conditions for ijmaa’, such as:

1. It should be soundly proven in the sense that it is either well known among the
scholars or transmitted by a trustworthy narrator who has read widely.

2. It should not have been preceded by a well-known difference of opinion. If that was
the case, then there is no ijmaa’, because scholarly opinions are not invalidated by the
death of their authors.

Ijmaa’ does not cancel out a previous difference of opinion; rather it prevents
differences of opinion from arising.

This is the most correct view, because of the strength of its argument.

And it was said that the second condition is not stipulated, so it is valid in a later period
for there to be consensus on one of the previous opinions and for that to serve as proof
for those who come afterwards.

According to the majority, it is not essential that those who unanimously agree all die
when still holding this view for ijmaa’ to be established; rather ijmaa’ is established as
soon as they (the scholars of a particular era) agree, and it is not permissible for them or
anyone else to go against it after that, because the condition for the establishment of
ijmaa’ do not include any stipulation that the era (of the scholars who reached this
consensus) should have come to an end with their passing. As ijmaa’ is established at
the moment they agree (on a particular issue), there is nothing that could cancel it out.

If one of the scholars (mujtahids) says or does something and that becomes well known
among the mujtahids, and they do not denounce it even though they are able to do so,
then it is said that there is ijmaa’. It was said that this establishes that there is ijmaa’;
others said that it is may be regarded as proof but not ijmaa’; and others said that it is
neither ijmaa’ nor proof. And it was said that if they all passed away before denouncing
it then it is ijmaa‘, because their silence until the time of their death, even though they
were able to denounce it, constitutes proof of their agreement. This is the view that is
most likely to be correct.

Other issues connected with ijma'

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Is it possible for ijmaa' to take place without basis (sanad) from the Qur'an, Hadith
or Qiyas (analogy)? The following views exist among jurists:

a. It is not possible for the Muslim Ummah or the jurists to agree on a position
without sanad from the Qur'an, Hadith or qiyas.
b. It is not possible for ijmaa' to take place without sanad from the Qur'an or
Hadith. (Qiyas cannot be a basis for ijmaa'.)
c. It is not possible for ijmaa' to have validity unless it is on the basis of qiyas.
d. It is possible for ijmaa' to take place without any sanad from the Qur'an,
Hadith, or qiyas.

In the books of fiqh there are many rulings for which no sanad is found anywhere.
Those who believe that ijmaa' is possible with sanad explain this by saying that
isnad for these rulings once existed but are now lost.

Another issue raised in connection with ijmaa' is as follows:

If in an age jurists held one or the other of two (ijmaa' ala qawlayn) or more views,
it is permissible to hold a view different from these two or more views. For
example, if a man leaves only a grandfather and a brother as his inheritors, then
there are found only two opinions concerning their shares. First, the two will share
inheritance equally. Second, all inheritance will go to the grandfather. Is it possible
to have a third opinion?

According to Al-Amdi the answer is negative for a majority of jurists and positive
for some shi'a, some Hanafi jurists and some ahl al-zahir (people who reject qiyas).
According to Sadr al-Shari'ah Hanafi jurists agree that ijmaa' of suhaba on two or
more views on a matter binds us to stay within those views but they disagree
concerning the ages after the suhaba.

Refusal to accept ijmaa'

If a ruling is reached by a form of ijmaa' considered conclusive by some scholars,

then in the eyes of those scholars that ruling must be obeyed and the failure to do
so after knowing about it is haram. But what if a person refuses to accept that
ruling all together? Will he be committing kufr?

Even when scholars consider a form of ijmaa' conclusive and binding, they do not
necessarily regard the rejection of a ruling reached by it as kufr. They are in
general far more cautious in declaring refusal to reject the result of ijmaa' on a
matter as kufr than in declaring a particular type of ijmaq' as conclusive and
binding.

Almost all jurists agree that refusal to accept an ijmaa' other than an ijmaa’ of
sahaba or an ijmaa’ established with continuity, tawatur, in all the previous
generations of Muslims (ijmaa' qat'i), like the Qur'anic verses, is not kufr. In case of
ijmaa' sahaba and ijmaa' qat'i two cases are distinguished:

1. Ijmaa' on matters related to the fundamentals of din whose comprehension

is needed by all Muslims, e.g. the belief in the oneness of God and in
prophethood, the obligatory character of the five "pillars" of Islam, facing
the Ka'bah while praying, the number of rak'at in each prayer, the times for

20
 hajj and fasting, prohibition of adultery, alcoholic drinks, stealing and
usury.
2. Ijmaa' on matters whose knowledge is expected only from "specialists"
(khawas), e.g. marrying at the same time a woman and her paternal aunt or
a murderer being cut off from inheritance.

There seems to be a general agreement that refusal to accept ijmaa' sahaba or

ijmaa’ qat'i on matters of the first category is kufr but opinions differ as to whether
a refusal to accept ijma' suhaba or ijma qat'i on matters of the second category is
also kufr.

Imam al-Harmayn (Diya al-Din 'Abd al-Malik al-Juwayni) says that refusing to
accept a method of deriving rules of shari'ah is not kufr. Therefore, a person does
not accept the principle of ijma' as a valid source of rules is not a kafir. Only a
person who accepts the principle of ijma' and also recognizes that a certain ruling
is based on ijma' and then refuses to accept it can be declared as committing kufr.

QIYAS

Definition of Qiyas

Literally;
Qiyas means measuring or ascertaining the length, weight or quality of [Link] are
called miqyas. Example; the cloth was measured by the yardstick.

Qiyas also means comparison – equality or similarity between two things.

Technically; Qiyas is an extension of a Shari'ah value from an original case (asl ‫ أصل‬- ) to a
new case, because the latter has the same effective cause (illah‫ علة‬- ) as the former.

The original case is ruled by the Quran or Sunnah and qiyas aims to extend the same ruling to
the new case based on the same illah.

The Basis of Qiyas

No clear authorities of qiyas in the Quran.

However, the Scholars quoted several proofs from the Quran and Sunnah as well as the
practice of the Companions as an indirect evidence to support the utilization of qiyas:

1. Surah al-Nisa’ 4:59

“… then if you quarrel of anything, refer it to Allah and the Messenger…”

The Scholars have reasoned that a dispute can only be referred to Allah and the Prophet by
following the signs/indications found in the Quran and Sunnah.
One way of achieving this is to identify the rationale of the rulings and apply them to
disputed matters, in case both issues in question share the same rationale = Qiyas

2. Surah al-Nisa’ 4:105

“We have sent to you the book with the Truth so that you may judge among people by means
of what Allah has shown you”.

21
Based on the above verse, a judgment may be based on the guidance that Allah has clearly
given or on that which bears close similarity to it.
Thus, exercising qiyas is considered as following the guidance of the Quran.
The Quran specifies the rationale of its law either explicitly or by reference to its objectives.

The rationale/objectives as guidelines to new cases.

3. Qiyas is a form of personal reasoning (ijtihad) which the Prophet SAW expressly validates
in the famous Hadith of Muaz bin Jabal when he was sent to Yemen.

4. A woman came to the Prophet SAW and said that her father had died without performing
the hajj. Will it benefit him if she performs the hajj on the father’s behalf? The Prophet told
her: “Supposing your father had a debt to pay and you pay it on his behalf, would this benefit
him?”
To this her reply was affirmative and the Prophet said, “The debt owed to Allah merits even
greater consideration”.

5. The Companions of the Prophet SAW also utilized qiyas in deducing the rulings of Fiqh
For example; Abu Bakr drew an analogy between the father and the grandfather in respect to
their entitlement in inheritance.

6. When the Companions held a council to determine the punishment of wine drinking, Ali
bin Abi Talib suggested that the penalty of false accusation should be applied to the wine
drinker, and he reasoned, by way of analogy, “When a person gets drunk, he raves and when
he raves, he accuses falsely”.

Classical Examples of Qiyas

1. The Quran forbids selling or buying of goods after the last call for Friday prayers until the
end of the prayer as stated in Surah al-Jumuah 62:9.

By analogy, this prohibition is extended to all kinds of transactions and activities such as
agricultures, administrations and others.

2. The Prophet SAW said in a Hadith that, “The killer shall not inherit (from the victim)”. By
analogy, this ruling is extended to bequests (wasiyyah), which would implicate that the killer
cannot benefit from the will of his victim.
3. According to a Hadith, it is forbidden for a man to make an offer of betrothal to a woman
who is already engaged to another man unless the latter discontinues the relationship or has
totally abandoned his offer. The illah is to avoid conflict and hostility among people. By
analogy, the same rule is extended to all other transactions in which the same illah is found to
be operative.

The Pillars of Qiyas

 The original case (asl ‫ أصل‬- ), on which a ruling is given in the text and analogy seeks
to extend it to a new case.
 The new case (far’‫ فرع‬- ), on which a ruling is needed.
 The effective cause (‘illah‫ علة‬- ), which is an attribute (wasf) of the original case and
it is found to be in common between the original and the new case.

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  The rule (hukm), governing the original case which is to be extended to the new case.

Conditions of the Asl

In Arabic, asl has two meanings:

(i) Source – such as Qur’an and Sunnah.

(ii) Subject matter of a ruling

Muslim jurists unanimously agreed that the sources of qiyas are Quran and Sunnah.
Majority of jurists : qiyas may also be founded on a rule that is established by ijma’.
E.g. ijma’ validates guardianship over the property of minors, a rule which has been
extended by analogy to authorize the guardianship of minors in marriage.

However, there is disagreement as to whether ijma’ constitutes a valid asl for qiyas
on the basis that the rule of consensus do not require that there should be a basis
(sanad) for ijma’.
Majority : One qiyas may not constitute the asl of another qiyas.
But, Ibn Rushd (Malikis) and some Hanafis opined otherwise.

Conditions of the Hukm

It must be a practical Shari’ah ruling – qiyas does not operate in the area of belief.
The hukm must be operative, which means that it has not been abrogated.
The hukm must be rational in the sense that human intellect is capable of
understanding the cause of its enactments.
The hukm must not be limited to exceptional situation.
The law of the text must not represent a departure from the general rule of qiyas in
the first place.

Conditions of the Far’

The new case must not be covered by the text or ijma’.
The effective cause of analogy must be applicable to the new case in the same way as
to the original case.
The application of qiyas to a new case must not result in altering the law of the text,
which is equivalent to overruling the text by means of qiyas.

Istihsan

Introduction

Istiĥsân is an essential part of Islamic jurisprudence and undeniably of many other areas of
human knowledge. It is clear from various proofs that the companions were not literalists in
the strict sense that they would seek an authority from the Qur’ân and Sunnah for every
verdict they issued. Rather, their rulings were based upon their own understanding of the
general spirit and objectives of Shariah and not merely restricted to the literal meaning of its
principles. In this essence Istiĥsân has been articulated

23
Istiḥsan (Arabic: ‫ )ِاْس ِتْح َس ان‬is an Arabic term for juristic discretion. In its literal sense it
means "to consider something good". Muslim scholars may use it to express their preference
for particular judgments in Islamic law over other possibilities. It is one of the principles of
legal thought underlying scholarly interpretation or ijtihad.

Etymology

Istiḥsan (‫[ استحسان‬istiħsaːn]) is an Arabic word derived from the word al-husn (‫)الحسن‬
which means good which is the opposite meaning of al-qubh (‫ )القبح‬which means bad. The
word istiḥsan is used to express "decorating or improving or considering something good". It
also applies to mean something towards which one is inclined or which one prefers, even if it
is not approved by others. Technically it has been defined in several ways by Muslim jurists:

 Bazdawi defines it as moving away from the implications of an analogy to an analogy

that is stronger than it.
 Al-Halwani defines it as giving up an analogy for stronger evidence from the Quran,
Sunnah or ijma.
 The Maliki jurist, Ibn al-Arabi defines it as sacrificing some of the implications of
evidence by way of exception.
 Al-Karkhi defines Istihsan as follows: Istihsan is when one takes a decision on a
certain case different from that on which similar cases have been decided on the basis
of its precedents, for a reason which is stronger than one found in similar cases and
which requires departure from those cases.

Theory of Istiĥsân & its legal significance

Istiĥsân is premised on Islamic law and the end result should not go against Islamic spirit.
Furthermore, Istiĥsân does not recognise any law above divine revelation, as compared to
equity law which is premised on the law of nature superior to all legal rules. Moreover,
Istiĥsân gives preference to the best of the various solutions that may exist from a particular
problem

Al-Masaalih Al-Mursalah

Definition of Al-Masaalih Al-Mursalah:

Al-Maslahah linguistically: It is taken from the verb ‫ َصَلَح َيْصُلُح‬or from ‫ َصُلَح َيْصُلُح‬and it
is the opposite of ‫ َفَس د‬in meaning (which means: to ruin/corrupt). Its meaning is therefore to
rectify (sahihisha; rekebisha), make better or right.

Al-Maslahah carries the meaning of As-Salaah (properness (inayofaa) /intactness iliyo

kamili) and the meaning of Al-Manfa’ah (benefit/interest/advantage). The plural of Maslahah
is Masaalih.

Al-Mursal: The unrestricted (Mutlaq) without a Qaid (restriction/limitation) or it means a

Daleel.

Al-Masaalih Al-Mursalah in the Istilaah (terminology) of Usool ul-Fiqh:

24
It is an expression of the description (Wasf) that appears to the Mujtahid to be most likely to
bring the benefit/interest (Maslahah) or repel the harm/detriment (Madarrah) when building
the Hukm upon that description (Wasf) without the Mujtahid finding from the Legislator
(Shaari’) that which indicates the cancellation of this description (Wasf) or reliance ( in it.

The Maslahah has been called a Maslahah because building the Hukm upon it is thought
(most likely) to lead to the acquisition. of benefits or to repel harms or negative bad things
(Mafaasid). It has been described as Mursalah due to it being free or empty of a Daleel
Shar’iy in respect to its consideration or its cancellation from the Shar’i perspective .

The ‘Ulamaa have agreed upon the impossibility of working with Al- Masaalih Al-Mursalah
in a matter from the matters of the acts of worship ‘(Ibaadaat) because they have come as
they are and without reasoning (Tawqeefiy) from Allah Ta’Aalaa, and defined and specified
by the Shar’iyah texts from the Kitaab and the Sunnah. This is like the Salaah, the Sawm,
Hajj and Zakaah, including the manner of how to perform or undertake these acts. It is
therefore obligatory upon the Muslims to abide by them in accordance to that which has been
explained to them in terms of the Ahkaam. This applies to the Hudood, Kaffaaraat (acts of
expiation), ‘Ibaadaat and Meeraath (inheritance) and whether the angle of Maslahah appears
to us or does not appear.

Example of Al-Maslahah Al-Mursalah:

When ‘Umar Ibn Al-Khattaab (ra) was the Khalifah he poured out (emptied) the milk that
had been mixed with water to discipline those who were committing this fraud. This fits into
the remit of the Maslahah so that they would not cheat the people in this way after that.

Another example:

The Sahaabah (ah) approved of the killing of the group or collective for the murder of one if
they participated in his killing because the Maslahah dictated that. That is to prevent two or
more to take part in the killing of a single person in an attempt to avoid the Qisaas (law of
retribution). It is so that no one who brought in someone else to assist him in killing a person
can be saved from Al-Qisaas and so that the blood of the victim does not flow in vain (i.e.
without retribution) and Al-Qisaas is made redundant. It has been related that a group killed
one person in Sana’a and so ‘Umar Ibn Al-Khattaab commanded that they all be killed. He
(ra) said:

‫لو اجتمع عليه أهل صنعاء لقتلتهم به‬

Had the people of Sana’a (as a whole) gathered upon it then I would have killed them for it.

The Categories of Al-Masaalih

From the Masaalih (interests) there are those which the Shaari’ (Legislator) has borne witness
to them with consideration (I’tibaar), there are those which the Shaari’ has borne witness to
them with cancellation (Al-Ilghaa’) and from them are those which the Shaari’ has been silent
upon. Therefore, the first category is Al-Masaalih Al- Mu’tabarah (considered interests), the
second is Al-Masaalih Al- Mulghaah (cancelled interests) and the third is Al-Masaalih Al-
Mursalah.

1 – Al Masaalih Al-Mu’tabarah:

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It is said that these are those which the Shaari’ has given consideration to, where the Shaari’
has legislated Ahkaam for them through which they were arrived at. This is like the
preservation of the Deen, the life, the mind, the honour and the property.

2 – Al-Masaalih Al-Mulghaah:

These are Masaalih (interests) that have been imagined to be Masaalih whilst the Shaari’
relinquished (acha, achilia) them and they are not given regard due to the Ahkaam that He
legislated, indicating that they are not to be given consideration.

An example of this category of Masaalih (interests) is the Maslahah of the female in regards
to her being equal to her male brother within inheritance. The Shaari’ (Legislator)
relinquished that by the Daleel of His Qawl Ta’Aalaa:
‫ِّظ ُأْل‬ ‫َأ اَل‬ ‫َّل‬
‫ُيوِصيُكُم ال ـُه ِفي ْو ِدُكْم ِللَّذَكِر ِمْثُل َح ا نَثَيْيِن‬

“Allah instructs you concerning your children: for the male, what is equal to the share
of two females” {An-Nisaa’ 11}

Or the example of the one who interacts with Ribaa (usury) to increase his wealth through
this interaction as the Shaari’ has cancelled this Maslahah when the text mentioned the
prohibition of Ribaa (usury/interest) in His Qawl Ta’Aalaa:

‫َوَأَح َّل الَّلـُه اْلَبْيَع َوَح َّر َم الِّر َبا‬

“And Allah has made trade Halaal and made Ribaa Haraam” {Al-Baqarah: 275}.

3 – Al-Masaalih Al-Mursalah:

These are the Masaalih that no specific Daleel from the legislator has been mentioned for
them and bear witness to legitimacy for them or the absence of legitimacy. This is the
meaning of them being Mursal or let go (i.e. without restriction).

These therefore are representative of Masaalih (interests) that have not been mentioned in the
Shar’iyah Nusoos (texts), positively or negatively. Rather they are left to the estimation of
Ijtihaad by way of Ra’y (opinion) in every time period or era.

An example:

Those who have taken Al-Masaalih Al-Mursalah have regarded a number of actions of the
Sahaabah (rah) to be based upon the Masaalih Al-Mursalah. These include:

– The compilation of the Qur’aan into a Mushaf by Abu Bakr (ra). – ‘Uthmaan Ibn ‘Affaan
(ra) ordering the copying of the Mushaf and burning other than that copy.

In their opinion, Abu Bakr and ‘Uthmaan saw that the Maslahah dictates taking that action
and so they undertook it. This was in the case that they had feared that the Qur’aan would be
forgotten following the death of the Huffaazh or that the Muslims would differ in regards to
the recitation of the Qur’aan in the absence of written Masaahif (i.e. copies).

26
It was related that in the time of his Khilafah ‘Umar (ra) spilled and poured out the milk that
had fraudulently been mixed with water as a disciplinary measure for the fraudster. This (in
their view) was from the angle of the Maslahah Al-‘Aammah (public interest) so that the
traders will not deceive the people.

Maqasid al-Shari'ah

Maqasid al-Shari’ah may be stated simply as the higher objectives of the rules of the
Shari’ah, the observance of which, facilitate the normal functioning of society by enhancing
the public good (maslaha), this implies avoiding actions likely to harm to individuals and
society. The intent, objective and purpose is simply to achieve social and economic justice as
well as enhancing the welfare of the community.

It is widely acknowledged that a large role was played by immoral behavior including the
conduct of individuals working in financial institutions led to financial crises, more
particularly the one that began in 2007. There was no moral framework in place to guide
those who pursued self-seeking interests by adopting what is commonly termed as immoral
practices. They were not required to pay attention to the risk entailed in conducting their
dealings and the harm immoral conduct was likely to cause to others and to society as a
whole.

Meaning

Maqasid literally means intent, objective and purpose with a desire to create harmony with
others; this relates to welfare, interest, or benefit. The vital part of the Maqasid’s objective is
preserving public good (maslaha), whereby it looks at the public good and welfare of society
as a whole in relation to the consequences of the intentions and actions of individuals. Thus,
Maqasid can also be considered as the wisdom and knowledge behind governing rules.

Shari’ah, literally translated means “the way”. The Shari’ah is a broad term for Islamic law in
the sense of principles and rulings, and represents the way to the one God (referred to as
Allah by Muslims, the Creator and Sustainer of the Universe) and purity. The overarching
goal of the Shari’ah is to establish justice.

While the Shari’ah applies to Muslims it provides guidance that regulates lives for the benefit
of mankind; it forbids all that is harmful to human being, society and the environment, and
permits all that is useful and beneficial to human beings, society and the environment. In the
broadest terms it has comprehensively tackled every aspect of human activity and provided
the rules with the greatest concern for public good.

27
Development of the Maqasid al-Shari’ah

The objectives of Shari’ah are not specifically mentioned in the original sources of the
Shari’ah, the Qur’an and the Sunnah (sayings and conduct of Prophet Muhammad. These
were developed over the years by Islamic legal scholars (jurists) who sought to protect
members of the community by establishing the essential moral values, and validate all
measures necessary for their preservation and advancement of a moral society. At an
economic level, the Shari’ah encourages work and trading activities in order to enable
individuals to sustain a living, and it prescribes a framework of rules and norms to ensure the
proper conduct of commercial transactions and financial dealings. Thus, the objectives of the
Shari’ah were seen as requirements for the survival and spiritual well-being of individuals, to
the extent that their neglect or omission would precipitate the destruction and collapse of the
normal functioning of society.

The Shari’ah was viewed by traditionalists as a set of rules, commands and prohibitions that
were addressed to the competent individual. The primary sources from the Shari’ah is
derived, and universally accepted by all Muslims (followers of Islam) are the Qur'an (the holy
scriptures of the Islamic faith) and the Sunnah (the tradition and examples of Prophet
Muhammad as narrated by his Companions. Over time the Shari’ah adapted to address new
and changing situations and find the correct course of action without compromising the
fundamental principles. The key methodologies applied, referred to as the secondary sources,
are Ijima (consensus amongst Muslim jurists on a particular legal issue), Qiyas (analogical
reasoning that aims to draw analogies to a previously accepted decision, Ijtihad (process,
whereby rational efforts are made by the jurist to make his own judgment and arrive at an
appropriate ruling) and Urf that refers to the customs and practices of a given society.

Maslaha (public good): the goal of Maqasid al-Shari’ah

Maqasid al-Shari`ah, or the goals and objectives of Islamic law, is an evidently important
and yet somewhat neglected theme of the Shari’ah. Generally the Shari`ah is predicated on
the benefits of the individual and that of the community, and its laws are designed so as to
protect these benefits and facilitate improvement and perfection of the conditions of human
life on earth. The Qur’an is expressive of this when it singles out the most important purpose
of the Prophethood of Muhammad (peace be on him) in such terms as: "We have not sent you
but a mercy to the world" (21: 107). This can also be seen perhaps in the Qur’an’s
characterisation of itself in that it is "a healing to the (spiritual) ailment of the hearts,
guidance and mercy for the believers" (and mankind) (10: 57).

٥٧ :‫ﮍ ﮎ ﮏ ﮐ ﭼ يونس‬ ‫ﮋ ﮌ‬ ‫ﭽﮉ ﮊ‬

The two uppermost objectives of compassion (rahmah)and guidance (huda) in the foregoing
verses are then substantiated by other provisions, in the Qur’an and the Sunnah that seek to
establish justice, eliminate prejudice, and alleviate hardship. The laws of the Qur’an and the
Sunnah also seek to promote cooperation and mutual support within the family and the
society at large. Justice itself is a manifestation of God’s mercy as well as an objective of the
Shari’ah in its own right. Compassion (rahmah) is manifested in the realisation of benefit
(maslahah) which the ‘Ulamâ’ have generally considered to be the all-pervasive value and
objective of the Sharî’ah and is to all intents and purposes synonymous with rahmah.

Educating the individual (tahdhib al-fard) is another important objective of the Shari’ah so
much so that it comes, in order of priority, even before justice and maslahah. For these are
28
both socially-oriented values which acquire much of their meaning in the context of social
relations, whereas tahdhib al-fard seeks to make every individual a trustworthy agent and
carrier of the values of the Sharî’ah, and it is through educating the individual that the
Shari’ah seeks to realise most of its social objectives. The overall purpose of a great deal of
the laws and values of the Shari’ah, especially in the spheres of ‘ibadat and moral teaching,
is to train an individual who is mindful of the virtues of taqwa and becomes an agent of
benefit to others.

Classification Of Benefits

The ‘ulama’ have classified the entire range of masalih-cum-maqasid into three categories in
a descending order of importance, beginning with the essential masâlih, or daruriyyat,
followed by the complementary benefits, or hajiyyat, and then the embellishment tahsiniyyat.
The essential interests are enumerated at five, namely faith, life, lineage, intellect and
property. These are, by definition, essential to normal order in society as well as to the
survival and spiritual well being of individuals, so much so that their destruction and collapse
will precipitate chaos and collapse of normal order in society. The Shari’ah seeks to protect
and promote these values and validates measures for their preservation and advancement.
Jihad has thus been validated in order to protect religion, and so is just retaliation (qisas)
which is designed to protect life. The Shari’ah takes affirmative and also punitive measures
to protect and promote these values. Theft, adultery and wine-drinking are punishable
offences as they pose a threat to the protection of private property, the well-being of the
family, and the integrity of human intellect respectively. In an affirmative sense again, but at
a different level, the Shari’ah encourages work and trading activity in order to enable the
individual to earn a living, and it takes elaborate measures to ensure the smooth flow of
commercial transactions in the market-place. The family laws of the Shari’ah are likewise an
embodiment largely of guidelines and measures that seek to make the family a safe refuge for
all of its members. The Shari’ah also encourages pursuit of knowledge and education to
ensure the intellectual well-being of the people and the advancement of arts and civilisation.
The essential masalih, in other words, constitute an all-encompassing theme of the Shari’ah
as all of its laws are in one way or another related to the protection of these benefits. These
benefits are an embodiment, in the meantime, of the primary and overriding objectives of the
Shari’ah

Tenets of Islamic law (Maqasid al-Shari'ah)

Maqasid al-Shari’ah may be stated simply as the higher objectives of the rules of the
Shari’ah, the observance of which, facilitate the normal functioning of society by enhancing
the public good (maslaha), this implies avoiding actions likely to harm to individuals and
society. The intent, objective and purpose is simply to achieve social and economic justice as
well as enhancing the welfare of the community.

Maqasid literally means intent, objective and purpose with a desire to create harmony with
others; this relates to welfare, interest, or benefit. The vital part of the Maqasid’s objective is
preserving public good (maslaha), whereby it looks at the public good and welfare of society
as a whole in relation to the consequences of the intentions and actions of individuals. Thus,
Maqasid can also be considered as the wisdom and knowledge behind governing rules.

29
Shari’ah, literally translated means “the way”. The Shari’ah is a broad term for Islamic law in
the sense of principles and rulings, and represents the way to the one God (referred to as
Allah by Muslims, the Creator and Sustainer of the Universe) and purity. The overarching
goal of the Shari’ah is to establish justice.

While the Shari’ah applies to Muslims it provides guidance that regulates lives for the benefit
of mankind; it forbids all that is harmful to human being, society and the environment, and
permits all that is useful and beneficial to human beings, society and the environment. In the
broadest terms it has comprehensively tackled every aspect of human activity and provided
the rules with the greatest concern for public good.

The goal of Maqasid al-Shari’ah

Maqasid al-Shari`ah, or the goals and objectives of Islamic law, is an evidently important
and yet somewhat neglected theme of the Shari’ah. Generally the Shari`ah is predicated on
the benefits of the individual and that of the community, and its laws are designed so as to
protect these benefits and facilitate improvement and perfection of the conditions of human
life on earth. The Qur’an is expressive of this when it singles out the most important purpose
of the Prophethood of Muhammad (peace be on him) in such terms as:

"We have not sent you but a mercy to the world" (21: 107).

١٠٧ :‫ﮕ ﭼ األنبياء‬ ‫ﮓ ﮔ‬ ‫ﭽﮐ ﮑ ﮒ‬

This can also be seen perhaps in the Qur’an’s characterization of itself in that it is:

"A healing to the (spiritual) ailment of the hearts, guidance and mercy for the believers" (and
mankind) (10: 57).

٥٧ :‫ﮍ ﮎ ﮏ ﮐ ﭼ يونس‬ ‫ﮋ ﮌ‬ ‫ﭽﮉ ﮊ‬

The two uppermost objectives of compassion (rahmah) and guidance (huda) in the foregoing
verses are then substantiated by other provisions, in the Qur’an and the Sunnah that seek to
establish justice, eliminate prejudice, and alleviate hardship. The laws of the Qur’an and the
Sunnah also seek to promote cooperation and mutual support within the family and the
society at large. Justice itself is a manifestation of God’s mercy as well as an objective of the
Shari’ah in its own right. Compassion (rahmah) is manifested in the realisation of benefit
(maslahah) which the ‘Ulamâ’ have generally considered to be the all-pervasive value and
objective of the Sharî’ah and is to all intents and purposes synonymous with rahmah.

Classification Of Benefits

The ‘ulama’ have classified the entire range of masalih-cum-maqasid into three categories in
a descending order of importance, beginning with the essential masâlih, or daruriyyat,
followed by the complementary benefits, or hajiyyat, and then the embellishment tahsiniyyat.
The essential interests are enumerated at five, namely faith, life, lineage, intellect and
property. These are, by definition, essential to normal order in society as well as to the
survival and spiritual well being of individuals, so much so that their destruction and collapse
will precipitate chaos and collapse of normal order in society. The Shari’ah seeks to protect
and promote these values and validates measures for their preservation and advancement.
Jihad has thus been validated in order to protect religion, and so is just retaliation (qisas)
which is designed to protect life. The Shari’ah takes affirmative and also punitive measures

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to protect and promote these values. Theft, adultery and wine-drinking are punishable
offences as they pose a threat to the protection of private property, the well-being of the
family, and the integrity of human intellect respectively. In an affirmative sense again, but at
a different level, the Shari’ah encourages work and trading activity in order to enable the
individual to earn a living, and it takes elaborate measures to ensure the smooth flow of
commercial transactions in the market-place. The family laws of the Shari’ah are likewise an
embodiment largely of guidelines and measures that seek to make the family a safe refuge for
all of its members. The Shari’ah also encourages pursuit of knowledge and education to
ensure the intellectual well-being of the people and the advancement of arts and civilisation.
The essential masalih, in other words, constitute an all-encompassing theme of the Shari’ah
as all of its laws are in one way or another related to the protection of these benefits. These
benefits are an embodiment, in the meantime, of the primary and overriding objectives of the
Shari’ah.

Presumption of Continuity( Istishab)

It is derived from an Arabic word suhbah meaning accompany. It is one of the fundamental
principles of the legal deduction that presumes the continuation of a fact. It is based on
probability and can be applied in the absence of other proofs.

Istishab, an initiative of ash-Shafii, is the rationalistic principle of extracting a legal solution

according to which changes are not considered to occur until clear signs of these changes are
apparent. It serves as the basis for many legal rulings such as the presumption of innocence -
the person is regarded as innocent unless proven guilty. Malik ibn Anas and ash-Shafii
regarded it to be a proof until it is contradicted. Several classical jurists differed over this
principle with some Hanafi jurists refusing to regard it as an evidence. It is now widely
employed by the contemporaries scholars with the exception of Hanbali scholars

Istishab means the belief that the past or present matter must be assumed to remain as it is in
the present or future.

Istishab refers to the process of deducing law by linking a later set of circumstances with an
earlier set. It is based on the presumption that the laws applicable to certain conditions remain
valid so long as it is not these conditions have altered.

It is the continuity of a legally established fact until the contrary is established.

In other words; it is the presumption in the laws of the evidence that a state of affairs known
to exist in the past continues to exist until the contrary is proved.

Example of Istishab is that a person is presumed innocent until the guilt is established.

Another example is that a debt is presumed to subsist until its discharge is evidenced.

A marriage is presumed to exist until its dissolution becomes known.

Types

Istishab is divided into several types. The majority of the scholars agree upon three types.

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  Presumption of the original absence

It is the absence of any Shariah norms on an adult Muslim, until their legitimacy is
established. An example is the absence of the mandatory sixth prayer for a Muslim, the
resumption of the person's innocence in a crime, etc. Islamic theologians are unanimous
regarding the validity of this type.

 Basis in everyday life is permissiveness

The overwhelming majority of jurists believe that the basis in useful everyday things is
permissiveness and in harmful things is prohibition. For example, a certain type of food is
allowed until a Sharia argument is established, proving its prohibition.

 Presumption of existence before evidence is available

If there are Sharia texts with respect to any norm, backed up by the Istishab, then statements
about the abolition of this rule will not be accepted until they are backed up by evidence. An
example is the continued ownership of property rights. The application to terminate property
will not be accepted until evidence is submitted supporting these statements. Another
example is the validity of the ablution, which will not invalidate on the mere basis of doubt.

Blocking the means to evil (Sadd al-dharā’i‘)

Dharai is the plural of Dhariah which signify means. Sadd means to block. In Usul, it
means blocking the means to evil. Sadd al Dharai is often used when a lawful means is
expected to produce an unlawful result.

Dharai have been divided into the following four types from the point of view of their
probability of leading to evil ends:

a) Means which definitely lead to evil. Such means are totally forbidden.
b) Means which are most likely to lead to evil and rarely leads to benefit.
Examples of this are selling weapons during war time and selling grapes to a wine-
maker. Most Ulama have invalidated such means.
c) Means which frequently lead to evil, but there is no certainty or even dominant
probability. Ulama differ widely on the illegality of such means.
d) Means which rarely lead to evil. Examples are digging well in a place which is
not likely to cause harm or speaking a word of truth to a tyrannical ruler. Ulama have
ruled in favor of permissibility of these means.

Sadd al-Dharai should not be used too much, particularly in the 3 rd category stated above.
Such use would render the "mubah" (lawful) and the Mandub (recommended) unlawful
which cannot be accepted.

The principle of Sadd al-Dhara’i’ applies in cases where: a lawful means is expected to lead
to unlawful result or that a lawful means which normally leads to lawful results is used to
procure an unlawful end.

Examples:

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 The use of the name Allah by non Muslims to refer to their god. The act (the use of the name
Allah) is lawful but may lead to evil What is the evil?
Allah says: ‘And let them not strike [stamp] their [women] feet [on the ground] so as to make
kn own what they conceal of their adornments’ [al- Nur: 31].

The expected result of a woman striking her feet on the ground while adorning herself with
something [anklets as was done in the Jahiliyyah days] that will cause eyes of foreign men to
turn is prohibited since this will most certainly lead to fitnah.
In addition, women are also forbidden to wear perfume outdoors in case foreign men are
enticed by their fragrance.
Hadith narrated by al-Bukhaari (1729) and Muslim (2391) from Ibn ‘Abbaas (may Allaah be
pleased with him) who said: The Prophet (peace and blessings of Allaah be upon him) said:
“No woman should travel except with a mahram, and no man should enter upon her unless a
mahram of hers is present.” A man said: “O Messenger of Allah, I want to go out with such
and such an army and my wife wants to go for Hajj.” He said: “Go out (for Hajj) with her.”

Urf (Local Custom)

Urf or local custom was accepted as a source of Islamic law in matters which are not directly
regulated by Quran or Sunnah provided that the custom at issue is predominant among people
and is not in conflict with principle of shariah.

Types of ‘Urf

‘Urf is divided into several categories and subcategories.

The first two categories are the general divisions which cover all other subcategories:

1. Approved or Valid Custom (al-‘urf al-sahih)

“One which is observed by the people at large without there being any indication in
the Shari’ah that it contravenes any of its principles.”
2. Disapproved Custom (al-‘urf al-fasid)
“Also practiced by the people but there is evidence to show that it is repugnant to the
principles of Shari’ah.”

The approved custom category above is divided into two types:

1. Verbal (qawli)
“Consists of the general agreement of the people on the usage and meaning of words
deployed for purposes other than their literal meaning. As a result…the customary
meaning tends to become dominant…the original or literal meaning is reduced to the
status of an exception.” Examples of this are the words salah, zakah, hajj, etc. They
are understood based on their custom meanings and not their literal meanings.
2. Actual (fi’li)
“Consists of commonly recurrent practices that are accepted by the people.”

The two categories above are each subdivided into two types:

1. General ‘Urf (al-‘urf al-‘aam)

“One which is prevalent everywhere and on which the people agree regardless of the
passage of time.”
2. Special ‘Urf (al-‘urf al-khaas)

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 “ It is prevalent in a particular locality, profession or trade…it is not a requirement…
that it be accepted by people everywhere.”

Conditions of Valid ‘Urf

Mohammad Hashim Kamali lists four requirements for a valid form of ‘Urf from which
Islamic law may be derived:

1. Custom must be a common and recurrent occurrence. It must be dominant to the

point that it is upheld in most of the cases to which it applies, otherwise, it does not
hold any authority. Also, the practice of a few people in a large community is not
sufficient; rather, it must be a regular occurrence among the masses.
2. In contracts and commercial transactions, custom must still be in existence at the time
of the conclusion of the transaction.
3. Custom must not violate a clear stipulation of an agreement. Contractual agreements
take preference over custom. Latter will only be resorted to in absence of the former.
4. Custom must not go against the definitive principles (nass) of Islamic law. If it does
so, custom will be given no consideration. In case “the custom opposes only certain
aspects of the text, then custom is allowed to act as a limiting factor on the text.”

An example of Urf – is seen in the amount of dower (Mahr) a Muslim gives to his wife
during marriage (Nikah). Shariah has made payment of mahr to the wife by the husband
as requisite for the validity of marriage. Allah says: “And give to the women (who you
marry) their dower with a good heart”. (4:4). However, no fixed amount has been
determined by both the Qur’an and Sunnah. It is therefore the custom prevailing in the
certain tribe, area or family which should determine it.

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