about islamic way of law

1. Islamic Jurisprudence
The Sources Sources of Isl Law

2. Meaning of Sources
• The term used for source is dalil (guide)
• ‫خبرى‬ ‫مطلوب‬ ‫الى‬ ‫فيه‬ ‫النظر‬ ‫بصحيح‬ ‫التوصل‬ ‫يمكن‬ ‫ما‬
(A valid examination of which yields transmitted
information)

3. The Classification of the Sources
• The Quran,
• Sunnah,
• Ijma(Consensus of Legal Opinion),
• Qiyas (Analogy),
• Istihsan (Juristic Preference),
• Qawl al Sahabi (The Opinion of a Companion),
• Maslaha Mursalah (Jurisprudential Interest),
• Sadda al-Dhariah (Blocking the lawful means to an Ulawful
end),
• Istishab al-Hal (Presumption of Continuity of a Rule),
• Urf (Custom),
• and Shara ma Qablana (Earlier Scriptural Laws).

4. Agreed upon and Disputed Sources
• Unanimously: 1. The Quran 2. The Sunnah
• By the majority: 3. Ijam 4. Qiyas
• By Nazzam (Mutazali): Ijma is not accepted
• By the Zahiri & Jafiri: Qiyas is not accepted
• Other than, mentioned above are disputed

5. Transmitted & Rational Sources
• Transmitted: 1. Quran 2. Sunnah 3. Ijma 4.
Opinion of a Companion 5. The earlier
Scriptures
• Rational: 1. Qiyas 2. Maslaha 3. Istihsan 4.
Istishab

6. Definitive & Probable Sources
• 1. Definitive (Qati) with respect to transmission &
with respect to meaning, like the texts of Quran &
Sunnah Mutawatirah that convey single meanings
(Nisf)
• 2. Definitive with respect to transmission but are
probable with respect to meaning, like the texts
of Quran & Sunnah that convey more than one
meaning. (Rub your head with water, Quroo)

7. Definitive & Probable Sources
• 3. Probable with respect to transmission &
definitive with respect to implied meaning,
like “there is nothing out of the inheritance for
the killer”
• 4. Probable with respect to transmission &
meaning both like no prayer without recitation
of al Fatiha

8. Definitions of Islamic Sources of Law
• 1. The Quran:
• The Quran is the Book revealed to the
Messenger of Allah, Muhammad (pbuh) as
written in the masahif and transmitted to us
from him through an authentic continuous
narration without doubt.

9. Definitions of Islamic Sources of Law
• 2. The Sunnah:
• What was transmitted from the Messenger of
Allah (pbuh) of his words, acts, and (tacit)
approvals

10. The Meaning of Ijtihad
• Definition of Ijtihad:
Literal meaning: the expending of maximum
effort in the performance of an act

11. The Meaning of Ijtihad
• Technical meaning of Ijtihad:
‫بطريق‬ ‫الشرعية‬ ‫باالحكام‬ ‫العلم‬ ‫طلب‬ ‫فى‬ ‫وسعه‬ ‫المجتهد‬ ‫بذل‬
‫ستنباط‬ ‫اال‬
It is the effort made by the muhtahid in
seeking knowledge of the ahkam (rules) of
the shariah through interpretation.

12. Implications of the Definition:
• The mujtahid should work to the limits of his
ability so much so that he realizes his inability
to go any further
• An effort expended by a non-mujtahid is of no
consequence, because he is not qualified to
do so

13. Implications of the Definition:
• The effort should be directed towards the
discovery of the rules of the shariah that
pertaining to the conduct. All other types of
rules are excluded
• The method of discovery of the rules should
be through interpretation of the texts with the
help of other sources. This excludes the
memorization of such rules from the books of
fiqh or their identification by the mufti.

14. The Task of the mujtahid is to
• Discover the law that is either stated explicitly
in the primary sources or is implied by the
texts, that is, discover it through literal
interpretation
• Extend the law to new cases that may be
similar to cases mentioned in the textual
sources, but cannot be covered through literal
methods

15. The Task of the mujtahid is to
• Extend the law to new cases that are not
covered by the previous two methods, that is,
they are neither found explicitly or implied in
the texts nor are they similar to cases found in
the texts

16. Texts that are not subject to Ijtihad
• Definitive texts with respect to transmission &
meaning
• Probable meaning is made definitive by Ijma

17. Three Modes of Ijtihad

18. First Mode
• He focuses on the literal meaning of the texts
(plain meaning, in literature, literal sense or
figurative)

19. The Second Mode
• When literal construction is exhausted by the
jurist, he turns to individual text through strict
types of analogy

20. The Third Mode
• The legal reasoning is undertaken more in line
with the spirit of the law & its purposes rather
than the confines of individual texts

21. The Qualifications of Mujtahid
• Knowledge of the Arabic Language
• Knowledge of al-Kitab (600 legal Verses at
least, Sciences of Quran like repealing &
repealed, historical reasoning etc)

22. The Qualifications of Mujtahid
• Knowledge of the Sunnah (its classifications:
Mutawatir, Mashhur, Khabr Wahid, criteria
laid down by the jurists for the classification &
acceptance of ahadith)
• Knowledge of Ijma

23. The Qualifications of Mujtahid
• Knowledge of the Objectives of Shariah
• Aptitude for Ijtihad

24. Who is a Mujtahid today?
• Ijtihad is primarily a legislative function
• Today the state has the monopoly over
legislation
• An opinion issued by a mujtahid would have
no significance unless it is accepted by the
state & converted into law through legislation
• Tremendous Scope of collective Ijtihad rather
than Individual

25. The 1st Mode: Interpreting the Texts
• The concept of Bayan (elaboration)
• Bayan means to elaborate the meaning and
make it evident ()

26. Types of Bayan
• Bayan Taqrir (complementary expression or
elaboration)
• Bayan Tafsir (enabling expression)
• Bayan Taghyir (elaboration by exception)
• Bayan Tabdil (conditional expression)
• Bayan Darurah (elaboration by necessity)

27. Bayan Taqrir
• It involves the elaboration of meaning that is
already evident
• It removes all doubts about some probable
meanings in the text either due to use of a
figurative term or general word
• ‫اجمعون‬ ‫كلهم‬ ‫فسجدالمآلئكة‬
• ‫بجناحيه‬ ‫طائريطير‬ ‫ال‬
• This is valid when it accompanies the text as
well as it separated from it

28. Bayan Tafsir(enabling expression)
• It is an elaboration that provides the details
associated with the text & enables the subject
to act upon the command in the verse
• Before elaboration the words were
Mujmal(unelaborated)orMushtarak(equivocal)
• ‫وآتوالزكوة‬ ‫الصلوة‬ ‫اقيمو‬
• Pray as you see me praying
• The detailed rates of payment of Zakat by
Sunnah

29. Bayan Taghyir (by exception)
• This is confined to exception (change or
altration)
• ‫عاما‬ ‫خمسين‬ ‫إال‬ ‫سنة‬ ‫الف‬ ‫فيهم‬ ‫فلبث‬

30. Bayan Tabdil(conditional expression)
• It is the making of a Hukm dependent upon
the fulfillment of a condition
• ‫أجورهن‬ ‫فأتوهن‬ ‫لكم‬ ‫أرضعن‬ ‫فان‬

31. Bayan Darurah (by necessity)
• The elaboration that assigns a meaning to a
text for which the text was not originally
stated
• ‫ثلث‬ ‫فألمه‬ ‫أبواه‬ ‫وورثه‬

32. Literal Interpretation of the texts
• Method of the Hanafis
• Method of the Mutakallimun

33. The structure of interpretation
• 1. The Ahkam are established through “Ibarat al
Nass” (the plain meaning rules)
• 2. The ahkam are established through “Isharat al
Nass” (the connotation of the texts)
• 3. The Ahkam are established through “Dalalat al
Nass” (through meanings implied by the texs)
• The Ahkam are established through “Iqtida al
Nass” (through meanings required by the texts of
a necessity)

34. Two types of underlying activity
• 1. Literal forms through which the hukm is
indicated like: commands, proscriptions &
reports
• Literal forms through the meaning is indicated
like: Aam, Khas, Mushkil & Muawwal, and
Zahir & Khafi

35. Ibarat al Nass (the plain meaning rule)
• It the method of looking at the text to determine
the meaning that is the main object of the text
• Examples:
• 1 ‫بالحق‬ ‫اال‬ ‫هللا‬ ‫حرم‬ ‫التى‬ ‫النفس‬ ‫والتقتلوا‬
• 2 ‫واتواالزكوة‬ ‫واقيموااصلوة‬
• 3 ‫وحرم‬ ‫البيع‬ ‫هللا‬ ‫وأحل‬ ،،‫الربواة‬ ‫مثل‬ ‫إنماالبيع‬ ‫قالوا‬ ‫بأنهم‬ ‫ذالك‬
‫الرواة‬
• 4 ‫أال‬ ‫خفتم‬ ‫فإن‬ ‫ورباع‬ ‫وثالث‬ ‫مثنى‬ ‫النساء‬ ‫من‬ ‫لكم‬ ‫فانكحوماطاب‬
‫تعدلوافواحدة‬

36. Isharat an Nass(the connotations of
the text)
• It is the method in which the hukm is
established through an indication of the text
by focousing on a meaning accompanying the
primary meanings that are the main object of
the text
• The ahkam are established by Ibarat al Nass
and Isharat al Nass by the same text

37. Continue…..
• Examples
• 1. ‫بالمعروف‬ ‫وكسوةهن‬ ‫رزقهن‬ ‫له‬ ‫المولود‬ ‫وعلى‬
• (this indicates that the father has the right
over his child, his possession and wealth)
• 2. ‫التعلمون‬ ‫كنتم‬ ‫إن‬ ‫الذكر‬ ‫أهل‬ ‫فسئلو‬
• (it indicates through Isharat an Nass that it is
necessary that a group of schollar be in
existence so that they can be asked )

38. Continue…
• 3. ‫االمر‬ ‫فى‬ ‫وشاورهم‬
• (through Isharat al Nass it indicates the
necessity of having a consultative body,
because the consulting the entire population
is not possible)