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Quran

1. Introduction:
The Holy Quran is the name of book consisting of those direct revelations which were
made to the Holy ProphetHazrat Muhammad (Pace Be Upon Him). It is in the very words
of Allah almighty. Quran is the primary source of law. It is first in the order of primary
sources and thus the first search for a hukm is to be in the Quran and the jurist should
not move to the next source unless the search in the Quran has been completed.
2. Meaning and definition of holy Quran.
(I) Meaning:
Quran is derived from the Arabic word Quran a which means To dead.
(II) Definition:
Many jurists have attempted to define. Holy Quran, but they maintain that the purpose
of definition is not to grasp the nature of the Quran.
Definition by Al-Bazdawl.
The Quran is the book revealed to the messenger of Allah, Muhammad (Peace Be Upon
Him) as written in the masahif and transmitted to us from him through an authentic
continuous narration without doubt.
3. Revelation of the holy Quran
Holy Quran is a book of Allah which is revealed to Holy Prophet (Peace Be Upon Him).
The first revelation came to the Holy Prophet (Peace Be Upon Him) when he was forty
years of age. Following verses of Surah-Al-Alaq were revealed to him.
Read in the name of thy lord, who create the man from a clot.
Read! And it is thy lord the most bountiful. Who teacheth by the pen. Teacheth man
that which he knew not. (Al-Alaq: 1-5)
4. Attributes of the holy Quran
There are 55 alternative names or attributes of the holy Quran e. g Al-Kitab, Al-Furqan,
Al-Noor etc.
5. Quran as a source of law
The holy Quran is a complete code of creed and morals as well as of the laws based
thereupon. The Quran seeks to guide man in all walks of life spiritual temporal,
individual and collective Quran says.
And we have revealed the scripture unto the only that thou may explain unto them that
wherein they differ, and (as) a guidance and a mercy for a people who believe. (16: 64)
There are the limits of Allah (hadud Allah) so do not near them. (2: 187)
(I) Divisions of verses of holy Quran
The holy Quran is divided into 30 division called Ajza or Paras and into 114 chapters
called Surrah. Which considts of 6666 verses. These verses divided in three sections or
portions.

(i) First portion


First portion deals with religion and its duties e. g. belief in one Allah, day of judgement
etc.
(ii) Second portion
Second portion deals with Quranic ethics.
(iii) Third portion
Third portion is related with Muamalat. It regulates the relationship of individuals among
themselves, with states etc. it deals with sales and purchase, lease and mortgages,
evidence, torts and contracts etc.
(II) Ahkam in the holy Quran
Two main categories of Hukm have been classified by the Muslim jurists.
(i) Hukm Taklifi
(ii) Hukm Wadi
(i) Hukm Taklifi
The aim of the hukm Taqlifi is to create an obligation for the commission or omission of
an act.
(ii) Hukm Wadi
The aim of hukm wadi is to either inform a subject that certain thing is a cause of
condition for or obstacle to a hukm or is to explain the relationship that exists between
two rules or to provide the criterion for judging whether an act perform is valid or not.
(III) Category of laws reveled
Most of the verses containing rules of law were revealed with reference to cases which
arose during the lifetime of the holy Prophet (Peace Be Upon Him). These may be
categorized as under.
(i) Abrogating verses
Verses which repeal or abrogate objectionable customs like usury gambling and
unlimited polygamy.
(ii) Verses affecting social reforms
Verses which affects social reforms such as by raising the legal status of woman, setting
the question of succession and inheritance on equitable basis.
(iii) Verses providing rights
Verses providing protection for the rights of minors and other persons under disability.
(iv) Penal verses
Verses providing principal f punishment for the purpose of securing place and order.
(v) Legal verses
These are the verses providing constitutional and administrative matters.
These verses principally occur in the madni Surahs.
(VI) Nature of laws lays down

The Holy Quran is a code of conduct laying down the fundamental principles and not the
detailed provisions so in case of ambiguity reference should be made to the Sunnah.
6. Position in Pakistan
Pakistan is an Islamic state and since the creation of Pakistan, attempts have been made
at different times to modify the existing laws in the light of Quran and Sunnah.
Article 227 of constitution of Pakistan 1973, runs as follows.
All existing laws shell be brought in conformity with the injunctions of Islam as laid
down in the holy Quran and Sunnah.
7. Constitutional status of Quran
In the west constitutional law is called the supreme law of the land. In Islamic
jurisprudence Quran is theconstitutional law. It has all those features which a modern
constitution have. The Quran provides all norms and principal for statehood.
8. Conclusion
To conclude, I can say, that the holy Quran is the first primary source of Islamic law. All
other sources derive their validity from the holy Quran which is in the direct words of
Allah almighty who is complete sovereign over the entire universe, but it is to be noted
that it is not a book of law. It is a book of guidance for the mankind, so it does not
contain a detailed corpus of legislation.

Sunnah & Hadis


1. Introduction
Sunnah is the second primary source of Islamic law. If the mujtahid does not find a text
in the Quran for a case he has to settle, he has recourse to the Sunnah for the derivation
of the Hukms. There is a special bond between Quran and Sunnah which must not be
severed as Sunnah is the explanation of the holy Quran.
2. Meaning
(I) Literal meaning
The word Sunnah stands for the Well know path or Well-trodden path. Which is
followed again and again.
(II) Technical meaning
What was transmitted from the messenger of Allah (Peace Be Upon Him) of his words,
acts and (trcit) approvals.
3. Kinds of Sunnah
Following are the kinds of Sunnah.
(i) According to its nature
(ii) According to its written record
(I) According to its nature

According to its nature, Sunnah is of following types.


(i) Sunnah al Qawliah
It is the saying or narration of the prophet (Peace Be Upon Him) through which he
intended the laying down of the law or the explanation of the Ahkam.
Example:
(i) La darar Wa-la dirar
(No injury is to be caused and none is to borne)
(ii) Sunnah Al Filiyah
It is defined as the deeds and practices of the Prophet (Peace Be Upon Him) having a
legal content like his prayers, fasts etc.
(iii) Sunnah Taqririyah
It is defined as the commission of certain acts, by word or deed. If something was done
in a particular way andProphet (Peace Be Upon Him) maintained silence without
expressing disproval to it, his silence in such a case is called taqrir or tacit approval and
is considered a Sunnah.
(II) According to its written recode
Sunnah may also be classified according to its entire written record, that is Ahadith.
(A) Division of Ahadith
With respect to its narration, Ahadith are divided into two types.
(i) Hadith Muttasil
(ii) Hadith Mursal
(i) Hadith Muttasil
The hadith whose chain of narration. Is complete. These are the ones in which the
narrator are mentioned from the beginning of the sands upon the Prophet (Peace Be
Upon Him)and no narrator is missing.
Types of hadith Muttasil
Following are the types of hadith Muttasil
(a) Hadith Mutawatir
It is one that is related by such a large umber of people that their agreement to
propagate a falsehood cannot be conceived. Twatur is of two types.
Twatur Lafzi
When all the narrators agree about the words as well as meaning the hadith is called
twatur Lafzi. For example. Following Hadith is twatur Lafzi.
He who attributes falsehood to me should prepare his abode in the fire.
Twatur Manawi (Meaning)
It is a Hadith which coveys the same meaning even if the words are not exactly the
same.
(b) Hadith Mashhur

The mashhur tradition is one the number of whose reporters do no reach the level of
twatur in the first generation. Thus if one or two companions related the tradition from
the prophet but in the next generation of tabium, a very large number related from them
and so on till the end of the chain when the traditions were compiled then such a
tradition is called mashhur.
(c) Hadith Ahad
The Hadith Ahad or the Khabar Wahid is reported by one or two persons from the
beginning of its chain up to its end when all traditions were recorded.
(ii) Hadith Mursal
Hadith Mursal is one that is not continuous and one or more names of the narrators are
missing from the chain of narration the jurists disagreed about the employment of a
Mursal hadith as proof for a Hukm.
4. Sunnah as a source of law
Allah almighty has delegated legislative powers to the Holy Prophet (Peace Be Upon
Him). The Quran from time and again makes the prophetic Sunnah as obligatory on the
Muslims the reason why Sunnah is treated as a source of law is based on the argument
that Sunnah of Holy Prophet (Peace Be Upon Him) was also revealed on him.
And came to you from God the light (Prophet) and the book. (Surah Al-Maida 15)
And remember what is read in your houses out of the Quran and the Hikma (sunhah).
(surah-Al-Ahzaab 34)
(I) Derivation of the authority of Sunnah
The authority of the Sunah as a source of law is derived from the Quran. Following
Quranic verses throws light on the importance of Sunnah.
If ye differ in anything among yourselves, refer it to the Allah and his Prophet (Peace
Be Upon Him) (Surah Al-Nisa 59)
And he does not speak of his own desire all is revealed on him. (Sura Al-Nahal)
He who obyes the Prophet (Peace Be Upon Him) obeys Allah. (Surah Al Nisa : 80)
(II) Legislative function of Sunnah
Sunnah is the second primary source of law. The jurists must recourse to the Quran first
for the search of the Hukm and should not move to the Sunnah unless the Search in the
Quran has been completed. More often than not, it is not possible for the jurist to
understand the meaning of the text of the Quran for the derivation of the Ahkams,
unless he has recourse to the explanation and commentary of the Quran which is
Sunnah itself.
(i) Qualification for Sunnah as source of law
It is not every Sunnah that is a Source of law. To qualify Sunnah as a source of law, it is
necessary that the acts must have a legal content. The purpose of the saying or acts of
the Holy Prophet (Peace Be Upon Him) should be the laying down of the law or its

elaboration.
(ii) Original law-making by Sunnah
Where some Hukm is not mentioned in the Quran and Holy Prophet (Peace Be Upon Him)
decides it according to its own wisdom, it becomes a source of original law making.
(iii) Legislative function of Sunnah with respect to holy Quran or relationship between
Quran and Sunnah.
Quran laid down the basic principles and Sunnah explains these principles. The
legislative function of Sunnah withrespect to the Holy Quran or the relationship between
Quran and Sunnah can be discussed as under.
(a) Specification of general rule
The Ahkams in the Quran is in general, undetermined form. The Sunnah restricts or
qualifies these Ahkams.
Example:
Quran says that for the male two shares of the female the Sunnah explains that the
murdered will not inherit.
(b) Elaboration of Ahkams
The Ahkams in Quran are general in unelaborated from. The Sunnah elaborates these
Ahkams.
Example:
Quran order prayer, Sunnah provide for timing, number and Rak as of prayers.
(c) Analogy on the basis of rule in Quran
The Sunnah may add or supplement the legal provision of the Quran.
Quran prohibits marriage of two sisters with one man. Sunnah prohibits it which
maternal or paternal aunt.
(d) Linkage of case with well known principle
Sunnah links a case with the well-known principal mentioned in the Holy Quran.
Example
Quran has permitted all goods things and has commanded the avoidance of Khabaith.
The Sunnah has linked with the Khabith the consumption of animals with morals and
birds with claws.
(e) General principal laid down by Sunnah
Some times Sunnah lays down a general principal.
Example:
Sunnah lays down the principal No injury is to be caused or borne. Quran mentions a
number of cases in which injury t others has been prohibited.
(f) Explanation of the implicit
The Quranic injunctions are sometimes implicit and the Sunnah makes it explicit by
providing the details.

Example:
Quran provides that the hands of each thief are to be cut. The Sunnah restricts this to
the thief who steals wealth equivalent to the Nisab and from the protective custody.
5. Difference between Sunnah and Hadith
Hadith is the noun derived from the word Hadatha which means a tale or verbal
communication of any kind. In legal sense Hadith means saying of Holy Prophet (Peace
Be Upon Him) which must be practiced. Sunnah and Hadith means one and the same
thing, yet there are few differences between these two terms.
(i) As to meaning
Hadith means saying of Holy Prophet (Peace Be Upon Him)
Sunnah refers to every saying of Holy Prophet (Peace Be Upon Him) and to every act
which he did or performed and every act which was permitted to be done by him.
(ii) Scope
Sunnah is bigger in scope
Hadith is narrow in scope as it refers to only the sayings of Holy Prophet (Peace Be Upon
Him)
(iii) As to element
Sunnah is a complete term which has three elements
Hadith is one element of Sunnah.
(iv) As to activity
Hadith consisted in some sort of activity. There must be saying of the Holy Prophet
(Peace Be UPON Him).
In Sunnah, there may be no activity. It may be that act of Holy Prophet (Peace Be Upon
Him) where he kept quiet in case he saw people doing a particular thing.
(v) As to collection
Hadith have been collected and compiled in a proper form
Collection of Sunnah was never made and it is out of collection.
6. Constitutional status of Sunnah
In constitutional making Sunnah has a great role. God has delegated legislative powers
to the Holy Prophet. He (S. A. W) gave practical shape and concrete form to the
injunctions of Quran.
7. Conclusion
To conclude, I can say, that Sunnah is the second primary source of Islamic law. It is
interlinked with the Quran insofar as it restricts its general meaning or qualifies its
absolute texts or explains its difficult words.

Qiyas

1. Introduction
Qiyas is the secondary source of Islamic law. All the four schools of Islamic jurisprudence
agree that in matters which have not been provided for by a Quran, Hadith or Ijma, the
law may be deduced from what has been laid down by any of these three authorities by
the use of Qiyas or analogy.
2. Meaning and definition of Qiyas
(I) Meaning
(i) Literal
Literally the word Qiyas means measuring or estimating one thing in terms of another.
(ii) Legal
It is process of deduction by which the law of a text is applied to cases by reason of the
text.
(II) Definition
According to Hanafis:
It is extension of law from the original text to which the process is applied to a
particular case by means of a common Illat or effective cause, which cannt be
ascertained merely by interpretation of the language of the text.
3. Origin and development of Qiyas
Owing to the ever growing needs of society and the expansion of Islamic religion beyond
the limited boundaries of Arabia, it was felt that the rules have to be deuced to meet the
dynamic character of the society. To fulfill this need, the doctrine of Qiyas was originated
by eminent jurists.
4. Arguments in support of Qiyas
(I) Quranic verses in support of it
Following Quranic verses support the necessity of Qiyas.
And certainly we have setforth for mankind in this Quran all kinds of similitudes, that
haply they may reflect.
(II) Ahadiths in support of it
When the Holy Prophet (Peace be Upon Him) Sent Maaz Bin Jabal to Yemen as governor
he said to him. How are you going to decide cases Maaz answered; (by the light of)
what is in the book of God. The Prophet (Peace be Upon Him) nest asked; and if you do
no find anything in the Quran to guide you? I will decide in the way the Prophet (Peace
be Upon Him) has been doing; But inquired the Prophet (Peace be Upon Him) If you do
not find any procedure from me what then I will do my best by exercising my
judgement. The Prophet (Peace be Upon Him) there upon happily agreed.
5. Elements of Qiyas
Qiyas has following elements:
(I) Asl

The original case covered by the next. That is the root case or even the base upon which
the analogy has been constructed.
(II) Hukm-Al-Asl
The hukm of the original case mentioned in the text.
(III) Illah
The underlying cause of the Hukm, which is determineds by the jurist is called the illah.
(IV) Far
The new case to which the hukm is extended is called the far or the offshoot.
It is the case which is analogically compared with the asl.
6. Kinds of Qiyas
According to Hanafis, following are the kinds of Qiyas.
(i) Qiyas Jail (Manifets)
(ii) Qiyay Khafi (Concealed)
7. Conditions for the validity of Qiyas
Following are the conditions of a valid analogical deduction of Qiyas.
(I) Original text not confined to particular facts
The law enunciated in the next to which analogy is sought to be applied must not have
been intended to be confined to a particular state of facts.
Example:
The Holy Prophet (Peace be Upon Him) said that if Hazrat Khuzaima (R.A) Testified for
any one, it is more than enough for him. Since tradition is personified, it does not lay
down a general rule of testimony.
(II) Original text capable of understanding
The law of the text must not be such that its rais on d etre cannot be understood by
human intelligence nor must it be in the nature of an exception to some general rule.
Example:
Eating by mistake during Ramzan by one who is fasting does not vitiate his fast, just
because this is a Quranic text, no analogy can be applied on this rule.
(III) Deduction should be corollary to text law
The rule deduced by Qiyas must not be opposed to a text law nor covered by the words
of a text. It should be in the nature of corollary of the text law.
(IV) Not change the law of text
(V) Analogy applies to cause and not to vocabulary
The analogy must not be applied to the vocabulary of the text but to the effective cause
on which the law is based.
8. Scope of qiyas as a source of law
The function of qiyas is to extend the law of the text to cases not falling within the
purview of its terms and not to establish a new rule of law. By application of analogy the

law embodied in a text may be widened generally. Qiyas has no application to pure
inference of facts which are to be made by the observations of science.
9. Nature of its authority as a source of law
Qiyas as a source of law do not rank so high as authority as Quran, Hadith and Ijma
does. The reason is that with respect to analogical deduction, one cannot be certain,
that they are what the law giver intended.
10. Examples of qiyas
(i) There is a tradition from the Holy Prophet (Peace be Upon Him) that says,
the murdered will not inherit. By applying qiyas the rule is extended to the bequest
and the murderer legatee is prevented from taking the bequeathed property.
( ii) At the time of Friday prayers indulging in sale is prohibited by Quran. By applying
analogy this hukm is extended to other contracts like pledging or marriage that may
have been planned at such a time.
11. Difference between Qiyas and Ijma
Qiyas is the opinion based on the similitude of circumstance whereas Ijma is a
consensus of learned.
12,. Conclusion
To conclude , I can, say that Qiyas is a process of deduction by which the law of a text is
applied to cases which though not covered by the language, are governed by the reason
of the text. It is subordinate to the Quran, Sunnah and Ijma and permissible to meet the
changing needs of time.

Istihsan
1. Introduction
Istihsan means preference of one over another considering the formed good.
When a rule of law deduced by analogy is either in conflict with Ijma or is likely to causes
inconvenience owing to its narrowness. The Hanfi jurists refuse to follow it and give
preference to rule, which in his opinion would better advance the welfare of man and the
interest of justice.
2. Meaning and definition of Istihsan
(I) Meaning
In its literal sense Istihsan means
to consider something good.
(II) Definition
(i) By Kharkhi
In case of some legal problem exception is created from its analogous precedent on the
basis of some stronger argument which render it distinguishable.
(ii) By Al Bazdawi
Moving away from the implications of analogy to an analogy that is stronger than it, or

it is the restriction of analogy by an evidence that is stronger than it.


(iii) By Al Hawani
3. Recoginition of principal of Istihsan
The doctrine of Istihsan is accepted by the Hanafi and Maliki Schools only and not the
others.
4. Reasons for Istihsan
(I) Quranic view
Verily, we call upon you to be a man of judgement and do justice.
Those who intently listen to us, they follow the best of it, those are the ones whom
Allah has guided and those are the ones endowed with understanding.
(II) Ahadith perspective
Dont cause injury to other and dont suffer a loss yourself.
What does Muslim consider better Allah also consider it better.
5. Origin of Istihsan
Abu Hanifa was the expounder of this doctrine. He feel that the man has been endowed
with intelligence to use his own common sense so that he does what he thinks fit. The
Hanafi lawyers speak of this doctrine Asif it was a species of analogical deduction. They
call it as hidden analogy.
6. Kinds of Istihsan
Following are different kinds of Istihsan:
(i) Istihsan- e- Qiyasi
(ii) Istihsan- e- Zarurat
(iii) Istihsan- e- Ijma
(I) Istihsan-E-Qiyasi
Under this type of Istihsan one can bend the law in favour of people and society by
giving preference to one Qiyas over the other Qiyas i. e. preference of Qiyas Khafi over
the Qiyas Jali.
(II) Isthsan-E-Zarurat
In this type it is to give preference to one Sunnah over the other Sunnah.
Example
Usually all Muslims say prayer by Standing, but there are more than one Sunnah about
saying prayer i. e. by standing. By sitting or by lying on the bed or floor. One is at liberty
to prefer one way over the other but according to his need.
(III) Istihsan-E-Lima
If two Ijma are available on a similar question of law then under Istihsan-e-Ijma one can
adopt that one which is closer to Quran and Sunnah.
7. Importance of Isthsan as s source of law
Islamic legal system is not a rigid one rather is much flexible to be adopted according to

the changing circumstances and needs of society the principal of Istihsan provides an
opportunity to the jurists to interpret the law according to the spirit and true intention of
Islam, and avoids inconvenience and, hardship within the limits prescribed by Quran and
Sunnah Islamic Shariah is based on the principle of convenience equity and public good,
which are also the main features of Istisan. It is the more effective mean than Qiyas for
introducing new elements, since in its case the rules for determining the cause are even
subtler than in the case of Qiyes, and consequently afford greater probabilities.
8. Examples of Istihsan
(i) According to Qiyas, the appointment of minor is invalid for the trustee as he should
major. But according to Istihsan, a minor is recognized as trustee and the Qazi should
appoint a competent person to act as his Guardian through whom the minor will
administer the property till he attains the age of puberty.
(ii) Islam gives a great importance to the proper dress of a woman. No one except her
husband can see her naked but on account of necessity a physician may be allowed.
( iii) Analogy require that ritually pure water should be used for ablution Isithsan requires
that the use of wells, in which dirt or carcasses of animals have fallen, be permitted.
9. Criticism against Istihsan
Following criticism has been raised against the doctrine of Istishsan.
(I) By Imam Shafi
Imam Shafi has criticized Istihsan in his books Kitab-ul-Urn and Kitab-ul-Risala. He is of
the view that Istihsan means the subjective appreciation of a jurist regarding the
interpretation of laws laid down in Holy Quran and Sunnah. Therefore it is similar to
create a new Sharaiah. He is reported to have said.
Whoever restorts to Istihsan makes laws.
(II) By Imam Ghazali
Imam Ghazail criticized Istihsan as a source of law. He said that Islam does not allow to
neglect the laws laid down in Holy Quran and Sunnah but by exercising Istihsan , new
Sharish can be created.
(III) By orientalists
They say that whet it is universally established that laws laid down in Holy Quran and
Sunnah cannot be changed, then how Istihsan can be exercised by ignoring such laws.
This objection is not justified because no Muslim could reject the law of Quran and
Sunnah.
10. Istihsan as Equity
It has rightly stated by sir Abdur Rahim that Quran and Sunnah are legislation, and if
analogy is common law, Istihsan is its equity. Just as in the case of English law, the
concept of equity developed side by said with common law mainly designed to remedy
the strictness of the law and to impart justice in the real sense of the word in the same

manner, Istihsan developed as the watchdog of analogical deduction.


11. Differences between British concept of Equity and Istihsan
I. As to history
Istihsan is an olden concept.
Equity is not old as the principle of Istihsan.
II. As to basis
Istihsan does not basis on Arbitrary opinion.
Equity basis on Arbitrary opinion.
III. As to scope
Istihsan has wider scope.
Equity has less scope.
IV. As to sources
Sources of Istihsan are Quran, Sunnah, and Ijma.
V. As to meaning
Equity means natural justice.
Istihsan means preferring or considering a thing to be good.
12. Conclusion
To conclude , I can say, that the public interest is regarded in Sariah as a basis of law.
The Hanafis call it Istihsan. Imam Abu Hanifa was of the opinion that strict adherence
to Qiyas or analogy would deprive law of that elasticity and adaptability which alone
makes it the handmaid of justice. So by exercising Istihsan thepreference may be given
to that law which is for the welfare of the people.

Istidlal
1. Introduction
Istidlal is a method of juristic deduction not falling within the scope of analogy. The
Hanafi jurists uses the word more or less in the sense of inferring a thing from
another thing in connection with the rules of interpretation.
2. Meaning of Istidlal
(I) Ordinary meaning
In ordinary use, Istidlal means the inferring from a thing another thing/
(II) Meaning used by Malik and Shafi
Istidlal is the name for a distinct method of juristic ratiocination, not falling within
the scope of interpretation or analogy.
3. Kinds of Istidlal
Istidlal is of three kinds
(i) Expression of connection existing between two proposition
(ii) Istihsab-ul-hal

(iii) Authority of previous revealed law


(I) Expression of connection existing between two propositions
The expression of the connection existing between one proposition and another
without any specific effective cause. It is of the following varieties.
(i) Connection between affirmative propositions
When the connection is between two affirmative propositions.
Example:
The proposition that every one who is competent to give a valid Talaq can also
make a valid Zihar.
(ii) Connection between negative propositions
When the connection is between two negative propositions.
Example:
The statement that if a regular ablution were valid without specific intention, then
a substitutory ablution (Wazu) would also be valid.
(iii) Connection between affirmative and negative proposition
When the connection is between an affirmative and a negative proposition.
Example:
The proposition that what is permissible cannot be haram or forbidden.
(iv) Connection between negative and affirmative proposition
When the connexion is between a negative proposition and an affirmative
proposition.
Example:
The statement that what is not valid forbidden.
(II) Istihsa-Al-Hal
The word Istishab means the continuance of companionship technically it means
the presumption of continuance of an earlier rule of its continued absence. It this
sense it means the maintenance of a status quo with respect to the rule. It is
merely a set of presumptions and not a source of law.
(A) Basis of Istihsab
The following general principles from the basis of Istihsab.
(i) The presumption is that all things are permitted, unless prohibited by the
shariah. This rule applies to beneficial things alone e. g. food drink etc.
(ii) There is no presumption of liability against anyone and all liability has to be
proved.
(iii) Once a thing is established beyond doubt it can only be set aside through an
equally certain evidence.
(B) Where Istihsab not apply
Where there is no hukm that had been established through a valid evidence, the

principle of Istihsab does not apply.


(III) Authority of previous revealed laws
According to the Hanafi law, only such laws of the previous revealed religions are
binding, as have been mentioned in the Holy Quran without disapproval.
4. Conclusion
To conclude, I can say, that Istidlal as a method of juristic deduction includes all
forms of ratiocination which do not fall within the scope of analogical deduction.
According to Qazi Udud the Hanafi doctrine of Istihsan as well as the Maliki
doctrine of public good are covered by Istidlal.

Ijtihad and Taqlid


1. Introduction
Ijtihad is one of the dependent sources of Islamic law. If a matter is not resolved
expressly in a Quran, Sunnah and by way of Ijma the jurist must not leave the matter
unresolved rather he should strive hard to find out the solution under the light of Quran
and Sunnah.
2. Meaning and definition of Ijtihad
(I) Meaning of Ijtihad
(i) Literal
Ijtihad literally means striving, expending of maximum effort in the performance of an
act.
(ii) Technical
It is the effort made by Mujtahid in seeking knowledge of the Ahkam (rules) of the
Shariah through interpretation.
(II) Definition of Ijtihad
Ijtihad means the application by a lawyer of all his faculties to the consideration of the
authorities of the law, that is the Quran, Traditions and the Ijma, with a view to find out
what in all probability is the law.
3. Arguments in support of Ijtihad
Following Quranic verses are in favour of Ijtihad.
And we have revealed on you the book which describes everything.
We have omitted nothing from this book.
Then ask those who have knowledge , if you yourselves do not know.
(II) Ahadith in support of Ijtihad
Following Ahadiths are also in support of Ijtihad.
Exercise Ijtihad because God makes the work easy for the person for which he is born in
this world.
When a ruler exercise Ijtihad properly in resolving an issue, he is to be rewarded by God

in dual way and if he is wrong in his conclusion, he gets one reward.


4. Function of Mujtahid
Following are the functions or takes of the Mujtahid.
(i) To discover the law that is either stated explicitly in the primary sources or is implied
by the texts, that is, literal interpretation.
(ii) To extend the law to new cases which are similar to cases mentioned in textual
sources.
(iii) To extend the law to new cases which are not covered by the previous methods.
5. Limitations on Ijtihad
Ijtihad cannot be made in cases which are covered by the express words of Quran,
Hadith or has been determined by Ijma. A jurist cannot exercise Ijtihad on the basic
pillars of Islam e. g. paying of Zakat, Prohibition of murder etc.
PLD 1981 FSc 23
Ijtihad is permissible only in field where no rule of Injunction from Holy Quran or Sunnah
is available.
6. Modes of performing Ijtihad
A jurist may perform Ijtihad by following the following pattern.
(i) Literal construction
A jurist firstly concentrates on literal meaning of the texts and follow the plain meaning
rule.
(ii) Qiyas
After the literal concentrates, the jurist may turn to Qiyas but he must confine to strict
types of analogy.
(III) Collectively reliance on texts
After exhausting the first two methods or modes, the jurist may rely on all the texts
considered collectively. This means that legal reasoning is undertaken more in line with
the spirit of the law and its purposes rather than the confines of individual texts.
7. Sources of Ijtihad
Sources are following:
(i) Quran
(ii) Sunnah
(iii) Ijma
8. Qualifications of Mujtahid
The word Majtahid means a person who can make Ijtihad. Following are the
qualifications of a mujtahid.
(I) According to author of Jam Ul Jawami
According to the author Jamul Jawami following are the qualifications of a mujtahid.
(i) Major

A mujtahid must be a major i. e. has attained the age of majority so a minor cannot be a
mujtahid.
(ii) Sound and rational mind
He must be of sound mind, possessing the understanding and of sufficient intellectual to
grasp the subject.
(iii) Knowledge of grammar
He must have average knowledge of the Arabic language and recognize the principles of
jurisprudence and sources of law i. e Quran, Sunnah etc.
(iv) Acquaintance with the principal of Shariah
He must have well versed with the main principles of Shariah or the legal code so as to
be able to ascertain the true intention of the law-giver.
(v) Knowledge of Naskh
The mujtahid must understands abrogation (Naskh) and identifies the occasions on
which rules have been repealed by law-giver.
(vi) Knowledge to circumstances of Quranic revelations
A Mujtahid must know the circumstances in which the texts of Holy Quran were revealed
or repealed.
(II) According to Fakhural Islam
The great thinker Fakhural Islam enumerates the following conditions.
(i) Conversant with Islamic jurisprudence
A Mujtahid must be conversant with the science of Islamic jurisprudence and the rules of
law applied in various departments.
(ii) Knowledge of the Quran
a Mujtahid should have knowledge of Quran together with its meaning both literal and
dictionary and he must be able to interpret its verses.
(iii) Knowledge of the traditions
A Mujtahid should have knowledge of the traditions as well. He must fully familiar with
the traditions reported by from the Holy Prophet (Peace be Upon Him) and able to
distinguish between authentic and un-authentic Matwatar and Mashhoor traditions. He
must be familiar with the rules for authenticity leading to the genuineness of the
traditions.
(iv) Acquaintance with the rules of analogical deduction
A Mujtahid must be aware of and full conversant with the rules and methods of
analogical deductin.
(III) Other qualifications
Following are also considered as necessary qualifications of Mujtahid.
(i) He must have faith and the courage of conviction.
(ii) He must have competence and advanced proficiency in Arabic language and

literature.
(iii) A comprehensive understanding of Fiqh, the basic principals and other relevant
matters.
(iv) He must understands the different forms of bayan or elaboration of the texts, which
is usually provided by the law-giver himself, and also identifies the occasions on which
such bayan is invoked.
(v) A proper understanding of modern development and a reasonable appraisal of
contemporary exigencies.
9. Kinds of Mujtahid
(I) Mujtahidum fish-shari
These are the jurists who have an absolute and independent power of expounding the
law e. g. Abu Hanifa Mailk, Shafi etc.
(II) Mujtahidum fil madhhab
The jurists having authority to expound the law according to a particular school comes
into this category. They were the disciples of jurists of first rank like Abu Yusuf belong to
Hanafi school. These mujtahids followed the fundamental principles laid down by their
respective masters but not consider themselves bound to follow the general principals or
arguments in particular cases, and they often profounder view opposed to those of their
masters.
(III ) Mutahidum fal masall
The are the jurists who are competent to expound the law on a particular question which
had not been settled by the jurist of first and the second class. The jurist of this rank is
at liberty to lay down the law in conformity to the principles of his school e. g. Khassaf,
Qadi Khan.
(IV) Mutjahidum Muqallid
They are also called Mujtahid Muqayyid. They have not any right to deduct the law but
their function was to explain the law and draw inferences. Theses Mujthahids are divided
into four groups.
(i) Ashabui Takhrij
(ii) Ashabu i Tarjih
(iii) AshabuI Tashih
(iv) AshabuI Shariah
10. Legal effect of Ijtihad
The legal effort of Ijtihad is the probability of the conclusion so arrived at being correct
but the possibility of such conclusion being erroneous is not excluded, that is why juristic
deductions are classed as discretionary or presumptive law.
11. Ijtihad and Taqlid
Ijtihad was performed by the jurists from about the ninth to 12th centuries A.D. It then

ceased to develop further owing to the doctrine of Taqlid. It was declared that the doors
of the Ijtihad are closed and therefore further interpretation of the Quran Sunnah was
not permissible. This view is over ruled by the modern jurists.
(I) Meaning of Taqlid
(i) General meaning
Taqild means following the opinion of another person without knowledge of the authority
for such opinion.
(ii) Meaning in Islamic jurisprudence
Taqlid means following the opinion of jurist in matters which have not been dealt with
by an express quranic or traditionary text or by Ijma.
(II) Duty of layman
Layman is a person who has not made a study of law and religion is concerned, and the
doctrine of Taqild applies only to those persons who do not possess the qualifications of
a Mujtahid.
(III) Taqlid in Pakistan
The constitution of Pakistan, 1973 permits Taqlid in articles 189 and 201. These articles
make the judgments of the supreme court binding on all courts and the judgments of the
High courts binding on courts subordinate to them. When the lower courts follow the
opinions of the higher courts they are performing Taqild.
(IV ) Two schools of Mujtahsdeen
There are two school of Mujtahadeen viz traditionalist and modernists the traditionalist
school denies the right of Ijtehad to later generations but the modernists asserts that the
doors of Ijthad are open and innovations in the Islamic law are Possible, provided one
remains with the injunctions and Ahkam of the Quran and Sunnah they criticize the view
that Taqlide had taken over the place of Ijtihad on the following grounds.
(i) Quranic reference
They very Quranic text which is the principle of Sunni jurisprudence that all juristic
deductions are uncertain and Ijtihad are closed, that will be in conflict with that
fundamental.
( V) Difference between Taqlid and Ijtihad
(i) In taqlid a person in need of opinion has to follow the opinion of another person while
in Ijtihad a person does not follow the opinion of another person but derives the rule of
conduct for himself directly from the sources of Islamic law.
(ii) In Ijtihad a person must possess some necessary qualifications while in Taqlid a
person not possess such qualifications.
(iii) Ijtihad is a source of law, creating new law but Taqlid is not a source of law.
12. Importance of Ijtihad in modern world
Ijtihad is a living source of law. It has become important in the modern times due to the

needs of the present time, such as economic , social and political changes, so that the
Muslim society and people may become a powerful force in the modern times.
Shah Wail ullah was the first Muslim thinker to propound a theory of cautious exercise of
Ijtihad. Then it was followed by Sir syed Ahmad Khan and Allama Mohammad Iqbal.
According to Allama Iqbal, Ijtihad can be undertaken not only by an individual jurist but
also by a legislative assembly recognizing the importance of Ijtihad in the modern times,
the Shariah ordinance of 1988, in Pakistan had entrusted the task of making the laws in
the country to conforms to the Qura and Sunnah to the judiciary.
13. Conclusion
To conclude, I can say, that the importance of Ijtihad lies in the dynamic and flexible
spirit of Islam, which is a complete code of life for all times. Within the limits imposed by
the Quran and Sunnah, Islamic law can be interpreted by a mujtahid who may be either
an individual or a legislative assembly. This development will bring about a
accommodation between the prescriptions and Injunctions of Islam, on the one hand,
and the imperatives of modern life on the other.

Ijma
1. Introduction
Ijma is the primary source of law. It means determination or consensus. The society
which was established by the Holy Quran and the Sunnah is a living society so the Allah
almighty gave sanction to the consensus of the Muslim to meet the arising needs of the
time.
2. Meaning and definition of Ijma
(I) Meaning of Ijma
Ijma is the verbal noun of the Arabic word Ajmaa it is used in two senses.
(i) Determination and resolution
(ii) Agreement upon a matter
(II) Definition of Ijma
Ijma is defined as agreement of the jurists among the followers of Mohammadan in a
particular age on a question of law.
3. Basis of Ijma
Ijma may be based on:
(i) Quran
(ii) Hadith or
(iii) Analogy
4. Reasons or arguments in support of Ijma
Allah almighty has completer the Islamic religion and Hazrat Muhammad (Peace Be Upon

Him) was the last ofthe Prophets (Peace Be Upon Him), so it necessarily follows that any
rule of law, which is not found to be explicitly laid down in the Quran or by the precepts
of the Holy Prophet, must be capable of being deduced from them, so Ijma is permitted.
(I) Quranic verses in support of Ijma
Following Quranic verses support the conception of Ijma.
You are the best of man, and it is your duty to order men to do what is right and to
forbid them from practicing what is wrong.
Obey God and obey the Prophet (Peace be Upon Him) and those amongst you who have
authority.
If you yourself do not know, then question those who do.
(II) Hadith in support of Ijma
Following Ahadith also support the concept of Ijma.
My following will never agree upon what wrong.
It is incumbent upon you to follow the most numerous body.
Whoever separates himself (from the main body) will go to hell.
5. Kinds of Ijma
Following are the kinds of Ijma
(i) Express Ijma or Ijma Qawli
(ii) Tacit Ijma or Ijma Sakuti
(I) Explicit Ijma
Explicit Ijma is one in which the legal opinions of all the jurists of one period coverage in
relation to a legal issue, and each of them states his opinion explicitly.
(a) It may take place when all the jurists are garthered in one session and an issue is
presented to them and they collectively expressed a unanimous opinion.
(b) It may also take place when an issue is raised in a certain period and all the jurists in
turn issue similar fatwas independently and at sepaeate times.
(II) Tacit Ijma
(III) Tacit Ijma takes place when some mujtahid issue a verdict on a legal issue and the
rest of the mujtahids come to know of it during the same period, but they keep silent,
neither acknowledge it nor refuse it expressly.
6. Who can perform Ijma
Only Muslim Mujtahids or jurists can perform Ijma. He must possess the following
qualifications.
(i) Scholar of Quran and Sunnah
(ii) Knows Qiyas
(iii) Expert of Arabic language
(iv) Impartial thinking
(v) Well versed with up to date knowledge

(vi) Knows the principal of Naskh


(vii) Conversant with the science of usul and faro
(viii) Competent to expound law.
7. Conditions for the validity of Ijma
Following are the conditions for the validity of Ijma.
(I) Ijma by mujtahids
The Ijma must be performed by Mujtahids i. e those who have attained the status of
Ijtihad.
(II) Unanimous opinion
There must be unanimous opinion among all mujthahids upon a Hukm shari.
(III) Performed by Muslims
All the jurists participating in Ijma must be from the Ummah of Hazrat Muhammad
(Peace be Upon Him).
(IV) After the death of Holy Prophet (Peace be Upon Him)
The Ijma must have taken place after the death of Holy Prophet (Peace be Upon Him).
(V) In a determinate period
The Ijma must be performed by jurists of single determined period i. e. of the same
generation.
(VI) Upon rule of law
The Ijma must be upon rule of law and all-non legal matters are excluded from the
domain of Ijma.
(VII) Reliance upon sanad (Evidence)
For deriving their opinion, Mujtahids should relied upon some sanad (evidence).
8. Ijma as a source of law
Ijma as a third source of law and under the circle of Quran and Sunnahs delegation
many issues can be resolved by Ijma.
(I) Enforcement of ordains of Quran and Sunnah
Ijma as a source of law helps in discovering the law and enforces the principals laid
down in Quran and Sunnah.
(II) Interpretation of Sharia
Ijam help in interpretation of laws of Sharia, according to the changing needs of times.
(III) New legislation can be made
To achieve the objects of Quran and Sunnah, new legislation can be made through the
process of Ijma.
(VI) First Ijma performed by Muslims
The election of Hazrat Abu Bakr to the caliphate by the votes of the people was based of
Ijma.
9. Legal effect of Ijma

The law laid down by consensus of opinion is authoritative and binding. But in its
theological sense, a decision of Ijma would be of absolute authority only if it conforms to
the following conditions.
(i) No opinion to the contrary should have been expressed on the question by any of the
companions, or by other Mujtahids before the formation of the Ijma.
(ii) None of the Mujatahids taking part in the decision should have afterwards changed
his opinion.
(iii) The decision must be proved as being either universally knows or well-knows.
(iv) It should be based on an express text of the Quran or a tradition of a continuous or
well-knows character.
(v) It must be regularly constituted.
10. Ijma and western concept of opinion prudentium
Opinion prudentium which meaqns the opinions and decisions of lawyers is parallel
concept of Ijma in the western society. In Roman law the lawyers were empowered to
give opinions by Emperor. With the passage of time such opinions become part of their
legal system. However the concept of Ijma has wider scope than the concept opinion
prudentium which is also knows as Responsa Prudentium.
11. Ijma in modern period
According to the accepted opinion of all four sunni schools, Ijma is not confined to any
particular age or country. The underneath principal of Ijma is that if a rule or principal is
upheld collectively by the highest legal forum in the land, then such a principle must be
followed by those subordinate to this forum. In the earlier stages, thisforum was
confined to jurist companions then the leading jurists of each school. Today the forum
would be the highest court in each Muslim country.
12. Conclusion
To conclude, I can say, that Ijma is an essential and characteristic principal of Sunni
Jurisprudence, one upon which the Muhammadan Community acted as soon as they
were left to their own resources. It may be constituted by decision expressed in words or
by practice of the jurists. The number of jurists participating in Ijma need not be large
and Ijma of one age may be reversed by subsequent Ijma of the same age.

Difference between Hadd and Tazir


1. Introduction
When certain public rights are violated the wrong is called maasiat that is, crime or
offence and it gives rise to certain substitutory public rights in the form of uqabat or
punishments. Viz Had and Tazir. The distinction between Hadd and Tazir is of
fundamental importance and concerns the doctrine of Hadd itself.
2. Types of punishment

Punishments are divided in to two types.


(i) Hadd
(ii) Tazir
3. Hadd
(I) Meaning of Hadd
The word Hadd literally means limit.
(i) Legal meaning:
Hadd means a punishment which is fixed and enjoined as the right of Allah.
(II) Origin of Hadd punishment
Hadd used to be prevalent in Arabic at the time of the promulgation of Islam, and the
Muhammadan law has laid down conditions of a stringent nature under which such
punishment may be inflicted.
4. Tazir
(I) Meaning of Tazir
(i) Literal meaning:
Tazir literally means disgracing the criminal for his shameful conduct.
(ii) Legal meaning:
Punishments that are at the discretion of the judge when the offence is related to a
private injury are called Tazir.
5. Difference between Hadd and Tazir
There is no indication in sunnah about the difference between hadd and Tazir. It would
be open to legislature to add to the categories of Hadd and also enhance the
punishment fixed by the Quran and the Sunnah keeping in view the circumstances and
requirements of an age, though the punishments so fixed cannot be reduced (PLD 1983
FSc 255)
Following are some points of distinctions between Hadd and Tazir.
(I) As to object
The object of Hadd is prevention of a crime by following the principle of retaliation and
keeps everyone in the limits prescribed by Allah.
The object of Tazir is reformation and correction of the offender.
(II) Procedure
The procedure of trial in Hadd is complicated.
The procedure of trial in Tazir is simple as according to some jurists judge can even
render judgment on the basis of his own knowledge.
(III) As to right
Violation of rights of Allah gives raise to Hudud punishments.
Violation of rights of individual gives raise to tazir punishments.
(IV) Commuting of sentence

The penalty of Hadd cannot be commuted.


The penalty of Tazir can be commuted.
(V) Pardon of sentence
Pardon cannot be granted in Hudud cases.
Pardon may be granted in Tazir cases.
(VI) Operation of mistake
Doubt or mistake has the effect of waiving the penalty of Hadd.
Doubt or mistake has no effect in Tazir.
(VII) Rule of evidence
The evidence of women is not admissible in hudud cases.
The evidence of women is admissible in Tazir cases, but the nisab of one man and two
women has to be maintained.
(VIII) Standard of evidence
In Hudud, the standard of evidence is very high as to the number and qualifications of
witnesses and the conditions under which Hadd may be imposed and any doubt would
be sufficient to prevent the imposition of Hadd.
In Tazir, the standard of evidence is not so high.
(IX) Mention of offences
Some jurists list seven hadd offences:
(i) Zina
(ii) Sariqah
(iii) Hirabah
(iv) Qadhuf
(v) Shrub
(vi) Riddah
(vii) Baghi
The offences has not been mentioned exchaustively and they are innumerable.
(X) Discretion
In Hudud crimes, the judge cannot exercise his discretion.
In Tazir, judge or head of the state may exercise discretion.
(XI) Replacement
Hadd punishments can be dealt with under Tazir.
In Tazir, the punishment of Hudud cannot be enforced.
6. Conclusion
To conclude, I can say, that the punishment of Hadd and Tazir is a part of Islamic law.
Hadd was prevalent in Arabia before the promulgation of Islam and it is prior to the
concept of punishment as Tazir. In Pakistan today tazir and siyasah are both classified
under the heading of Tazir. While the law of Hudud is enforced through the prohibition of

Hadd order (No: 4) 1979, Hudud ordinance VI 1979 (offences against property) and Zina
ordinance (Enforcement of Hadd) VII, 1979.