TABLE OF CONTENTS

1. INTRODUCTION…………………………………………………….. 04

2. DEVELOPMENT OF ISLAMIC JURISPRUDENCE………………...05

3. PRIMARY SOURCES…………………………………………………05
3.1 THE QURAN…………………………………………………...05-06
3.2 SUNNAH (HADITH)…………………………………………...06-07
3.2.A Categories of Hadith

4. SECONDARY SOURCES……………………………………………..07
4.1 IJMA…………………………………………………………….07-09
4.1.A Views of Scholars on Ijma………………………………..09-10
4.2 QIYAS…………………………………………………………..10-11
4.2.A Views of Scholars on Qiyas………………………………….11

5. CONCLUSION…………………………………………………………12

6. BIBLIOGRAPHY……………………………………………………....13

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1. INTRODUCTION

The religion of Islam carries significant characteristics of an elaborate legal system seeking to
regulate broad areas of human conduct in accordance with its ideal paradigm of what constitutes
right and wrong. Islamic precepts, which Muslims believe to have been inspired by God, should
be followed by believers by means of thought and deed. Classical Islamic jurisprudence rests on
a monotheistic outlook that regards God as the ultimate source of law, for He alone is taken to be
the ultimate sovereign whose omnipotence over human affairs stems from His status as the
creator of the universe. Humankind accordingly needs no further justification to be subordinate
to His will. Unsurprisingly, in relation to Lord (rabb), Islam characterises humans as servants
(‘abd).1 The word ‘Islam’ derives from the Arabic term salam, which has a two-fold meaning:
peace and submission (to God).2 A Muslim, then, is a person who submits to God’s will to the
exclusion of any other revered entity.

Islamic law is often referred to as the Sharia. The concept of Sharia, however is not confined to
legal norms, but conveys a more holistic picture; the Arabic translation of Sharia is ‘the road to
the watering place’.3 Furthermore the Sharia , unlike Canon law or Kirchenrecht (Church law),
does not simply represent religious laws, but covers a wide range of secular laws and ordinances.
These include areas as diverse as international commercial law, criminal law, constitutional and
administrative law, humanitarian and human rights law. The primary sources of Islamic Law
includes The Quran (Holy Book) and the Sunnah (teachings of the prophet).The main secondary
sources, namely ijma (consensus of commentators on a controversial point of law) and Qiyas
(analogical deduction).

There are few other sources like Istihsan (juristic preference), Al-masalih al-mursalah (public
interest), Ijtihad (independent reasoning of a person who is competent to make ijtihad, to deduce
the judicial ruling of an issue from the source materials of the Shariah), Taqlid (blind following
of the rulings of the past, htidlal (derivative interpretation), recognised by Maliki and Shafi’I,
lstishab (presumption arising out of existing circumstances), (presumption of continuity). But in
this article we will focus on the four sources in the development of Islamic Law. For this we will

1
Montgomery W. Watt, Islam and Christianity Today , 125( Routledge, London, 1983).
2
Bernard Lewis, The Political Language of Islam, 78. University of Chicago Press, Chicago, (1988).
3
R Landau, Islam and the Arabs (George Allen and Unwin Ltd, London, 1958).

2
first look into the idea of Islamic jurisprudence and discuss all the four major sources of Islamic
Law.

2. DEVELOPMENT OF ISLAMIC JURISPRUDENCE

Islamic jurisprudence is an important branch of Islamic learning. The word fiqh literally means
"intelligence or understanding". The fiqh in the legal terminology signifies a study of the details
of Islamic law as derived from its sources. It is also sometimes defined as knowledge of one's
rights and obligations in the light of the sources of the Shariat. 4 It deals with the issues relating to
all aspects of human life. Ilm-i-fiqh helps us to understand the Shariat's rules with regard to the
problems relating to the different aspects of human life. The origin of Ilm-i-fiqh may be traced
back to the very early period of Islamic history. With the passage of time it continued to develop
till it reached its zenith after the formation of the four well-known schools of fiqh in the second
century of the Hijra era.

3. PRIMARY SOURCES

The sources of Islamic law are divided into primary and secondary. The primary sources, the
Quran and Hadiths, were the basic sources of guidance for the Muslims in their day to day life.
They formed the body of the Islamic law as well as the main sources for deduction of the legal
points.

3.1 The Quran

It is the primary and most authoritative source of Islamic law. Since the Quran is believed to
contain the literal words of God, it is deemed the most authentic record of Islamic law,
incarnating the final, inimitable and infallible injunctions of everlasting validity. 5 The Quran is
deemed to embody an authentic record of God’s eternal and unalterable word.6 Quran never
claims to be a code of law. Only eighty of its verses may strictly be called legal in the sense in
which today we call a thing legal. But due to its coverage of nearly every aspect of human life
and dealings, it is not surprising to find its influence in every walk of life of every Muslim. 7

4
Ai-Maharri Subhi Mahmasani, Falsafah al-Tashri fil-lslam 13-14,( Beirut, 1952).
5
Farooq A. Hassan, “The Sources of Islamic Law”, 76 American Society of International Law 66 (1982).
6
The Quran, 10:37 (translation by Arthur J. Arberry).
7
Syed Khalid Rashid, Muslim Law (Eastern Book Company, India, 6th edn. 2020).

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Incorporating an amalgamation of legal and ethical principles, as well as ritualistic and moral
exhortations, the Quran provides the fundamental substance of the Islamic law (Shariah) and
imposes a clear set of legal and moral obligations on Muslims. The Quran covers the basic
aspects of mundane and spiritual existence, envisaging guidelines for legitimate and ideal human
conduct.8 Lessons of right behaviour in daily matters, and wisdom in spiritual matters, may thus
be sought from the Quran. In view of the fact that God’s ordinance is contained in the Quran, the
ideal life for Muslims is one that is lived in line with the relevant Islamic precepts and
injunctions, whether ritualistic, moral or legal in character.9

3.2 The Sunnah (Hadith)

It is a narration containing a report of what the Prophet said or did in a certain form as
transmitted by one of his companions, who in his turn would relate it to someone belonging to
the following generation. A Hadith is a report that communicates what the Prophet had
reportedly said or done.10 The report’s main function is to shed light on a wide array of important
matters in Islam.

3.2.1 “Hadith ” or “Sunnah” (Traditions) may be classified into the following three categories:11

1. Hadith Mutawatir (continuous): Those which have received universal acceptance and are
narrated by an indefinite number of men belonging to the categories of companions,
successors and successors of successors.
2. Hadith Mashhoor (well-known): These were reported by a limited number of companions
in the first instance and thereafter fulfilling the conditions of a continuous tradition.
3. Hadith Ahad (isolated): These rest upon the testimony of one or more narrators, who are
limited in number, not fulfilling the conditions of either of the above two classes.

The importance of Hadith as an important source of Muslim law has been laid down in the
Quran, emphasised by the Prophet, recognised by his immediate successors and other
companions, and accepted by all the important Muslim jurists.12
8
Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, 18 (Islamic Texts Society , Cambridge, 1989).
9
Joseph Schacht, An Introduction to Islamic Law, 11 (Oxford University Press, Oxford, 1982 ).
10
Israr A. Khan, Authentication of Hadith: Redefining the Criteria, 28 (International Institute of Islamic Thought,
London, 2010).
11
Supra note 7.
12
M. Zubayr Siddiqui, The Importance of Hadith as a Source of Islamic Law” 1964.

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The Quran says, “Whatever the Prophet gives accept it, and whatever he forbids you abstain
from it.” (49: 7). It also says, “He does not speak out of his desire. It is nought but the revelation
revealed (to him).”13

Roughly since the second century of Islam, Muḥammad’s well attested manner of behaviour has
been considered to constitute a normative rule of conduct for Muslims. The phenomenon of
precedent or normative custom, however, is not entirely foreign to the pre-Islamic period; Arabs
have felt bound by tradition or precedent since time immemorial. The conventional wisdom
dictated that the precedent of ancestors was to be revered and imitated. Adherence to ancient
traditions often left no noteworthy room for new experiments and innovations that could alter the
status quo. Entrenched customs thus presented a significant obstacle to innovation, so much so
that in order to discredit an idea, it was generally sufficient to label it an ‘innovation’.14

The Sunnah of the Prophet is known through authentic reports of his sayings called Hadith.
There are several collections of Ahadith like Bukhari, Muslim, Ibn Majah, etc. named after the
name of their compilers.

4. SECONDARY SOURCES

The secondary source emerged from the times of the pious Caliphs upto the Umayyads, it is
known as the period of collection and interpretation of basic sources. The Holy Quran and
Hadith, being the basic sources of the Shariat, were interpreted by the jurists to deal with the new
problems or to extend the application of original rulings to the subsidiary issues under the
guidelines given in the Quran and Hadith. This further stepped up the process of analogical
deduction (Qiyas) and use of Ijma for solving the new problems.

4.1 Ijma

The third source of lslamic law after Quran and Sunnah is 'ijma' which etymologically stands for
'consensus'. The technical term 'ijma' comes from a root jama'a, signifying "the totality",
"everybody". The verb jama'a means "to bring together". Thus ijma means literally 'unanimous
agreement" or "total consensus". Ijma also means consensus on rules of law claimed to be

13
Supra note 7.
14
Majid Khadduri and Herbert J. Liebesny, Law in the Middle East, 34( The Lawbook Exchange, New Jersey,
2008).

5
derived from either the Quran or the Sunnah.15 The concept of juristic consensus (ijma) as an
authoritative, binding source of Islamic law was originally conceived through the exercise of
ijtihad undertaken by the Prophet’s companions and learned scholars of the classical period, 16 a
phenomenon that highlights the dialectical relationship between these two secondary sources.
While a theological basis of ijma may not be found in the Quranic text, it is said to have been
based on a tradition attributed to the Prophet: “My community will not agree on error”. This is
generally read to mean that after the Prophet, the Muslim community could concur with man-
formulated doctrines and practices that were not expressed in the Quran and Sunnah. Absent
prophetic guidance, Muḥammad’s companions (ṣaḥabah) hence invoked the method of general
consensus (ijma) to enrich the Islamic law. New norms extracted through this method formed a
substantial portion of Islamic law, supplementing the primary sources.

Types of Ijma17

1. Ijma of the companions of the Prophet (Ijma Us-Sahaba)

2. Ijma of the jurists (Ijma ul Fuqaha)
3. Ijma of the people (Ijma ul Ummah)

While the first type is universally accepted and is incapable of being repealed, the other two
types are somewhat disputed.

Important requirements for the validity of Ijma 18

1. it shall not come into conflict with the Quran or Hadith.

2. Once a question is determined by Ijma, it cannot be reopened by individual jurists.
3. One Ijma may be reversed by a subsequent Ijma; and
4. when the jurists of an age have expressed only two views on a particular question, a third
view is inadmissible.

The use of Ijma in Islamic Law

15
Wegner, Judith Romney, "Islamic and Talmudic Jurisprudence: The four Roots of Islamic law and Their Talmudic
Counterparts", 26 The American Journal of legal History, 39 (1982).
16
Abdullahi Ahmed An-Na’im, Toward an Islamic Reformation: Civil Liberties, Human Rights, and International
Law 27 (Syracuse University Press, Syracuse, 1996).
17
Syed Khalid Rashid, Muslim Law (Eastern Book Company, India, 6th edn. 2020).
18
Ibid.

6
Ijma was regarded as a major source of law and helped in overcoming the difficulties arising
from the disputes among Muslim jurists about the rulings and methods of interpretations. "By
means of ijma what was at first an innovation, and as such heretical, has been accepted and has
overridden the earlier sunnah. IJma has not simply fixed unsettled points, but has changed earlier
doctrines, of the greatest importance. It is thus regarded by many, within and without Islam, a
powerful instrument of reform. Reformers saw the restrictions on innovative thinking as
hampering the progress of Muslims, positing that each generation of Muslims must be permitted
to resolve the particular problems of their age through critical deliberation. For only in this way
would the deleterious effects of unquestioned emulation be averted and the richness of Islamic
thinking be saved from rigid dogmas. Reformist thinking hence highlighted the imperative for
substantial reinterpretation and reconstruction of many basic concepts and principles via free
discussion, open-mindedness, and rigorous scholarship.19

4.1.1 Views of Islamic Scholars on Ijma

Al-Shafii defines Ijma as the view held by the majority of the Muslims and uses it as a secondary
source of elucidation on questions which cannot be decided from the Quran and the Sunnah of
the Prophet. The eminent philosopher and jurist Imam Al-Ghazali argued that critical thinking
based on wider analogy, as opposed to narrow syllogism, and on the general purposes of law was
permissible.20 Ibn Taymiyya likewise advocated the indispensability of ijma so that Islamic
thought could be saved from stagnation. 21 Nonetheless, the tide of relying on orthodox
interpretation of extant sources progressively rose, and over the centuries far fewer jurists
claimed to possess the required qualifications to formulate novel ideas. Hence, with the tool of
Ijma the Muslim jurists tried to resolve new problems.

The Shia school did not accept Ijma except when it emanated from the family of the Prophet or
unless the jurisconsults were endorsed in their consensus by the infallible Shia Imam. Sunnis, on
the other hand, hold that since Quran enunciated only a few rules of law which, after the death of
the Prophet, who used to give guidance, are by no means sufficient to cover the numerous
questions of the day-to-day developments, Ijma becomes necessary in the circumstances. As the
19
Olivier Roy, Secularism Confronts Islam, 45 ( Columbia University Press, New York, 2009).
20
Imran A. K. Nyazee, Theories of Islamic Law: The Methodology of Ijtihad, 195 ( The Other Press, Islamabad,
1994)
21
Bernard Haykel, On the Nature of Salafi Thought and Action 43 (Columbia University Press, New York,2009).

7
learned alone are competent to make such deductions, their opinion on any question must be of
valid authority.

4.2 QIYAS

‘Qiyas’ literally means ‘measuring’ or ‘ascertaining’ the length, weight, or quality of something.
Qiyas also means comparison in order to suggest similarity or equality between two things.
Legally, qiyas is the extension of Sharia value from an original (asl) case to a new case because
the latter has the same effective cause (illah) as the former. The original case is regulated by a
given text and Qiyas seek to extend the same ruling to a new but similar case. The commonality
of effective cause between the two cases justifies qiyas. Jurists resort to qiyas only if a solution
to the new case is not found in the Quran and Sunnah or a definite ijma. The law may be deduced
from any of these three sources through qiyas. Qiyas is different from interpretation as it is
concerned with the extension of the rationale of a given text to cases which may not fall within
the terms of its language. It is in this sense that qiyas is considered to be discovering and
extending the law. As defined by Abdur Rahim, “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
text”.22 Qiyas is said to “base on the use of reason to conclude that an existing rule applies to a
new situation because it is similar to the situation regulated by that rule, or to abstain from
applying the existing rule from the applying to the new situation that is proven dissimilar”.

For example: Strong drink is prohibited by explicit provisions. The cause for the prohibition is
the intoxicating effect. If we assume that wine had not been explicitly prohibited, we are still
able to equate it by analogy to strong drinks in general, since the cause for the prohibition is the
effect of intoxication, to which both give rise. Similarly, if there is no intoxication, there is no
prohibition.23

All the four schools of the Muslim jurisprudence accept the authority of Qiyas as a source of law.
But it was one of the causes of conflict between the schools. The Imamiyah Shia rejected it;

22
Abdur Rahman, Muhammadan Jurisprudence: According to the Hanafi, Maliki, Shafi and Hanbali schools, 44
(P.L.D. Publisher, Lahore, Pakistan)
23
Sobhi Rajab Mahmassani, The Philosophy of Jurisprudence in Islam 79 (London 1961).

8
Daud-al-Zahiri and his followers did likewise; however, the majority of jurists and the Zaidiyyah
Shia accept it.24

4.2.1 Views of Scholars on Qiyas

AI-Shafii says in his Risala that Qiyas is used in the cases which are not dealt with in the Quran,
Sunna or ijma. He regards Qiyas as of two kinds, Qiyas-i-Jali or evident and Qiyas-i-Khafi or
hidden.25 However, the use of Qiyas was permissible only when it was impossible to use these
sources or "roots". "If traditions require to be verified by the sacred text, Qiyas does still more
so. The Quran is the word of Allah, while Qiyas is the work of feeble intelligence.

Imam Abu Hanifa was the first who introduced this legal principle into the Islamic law. It is
reported that Malik used qiyas in his legal decision-making. Shafii, in his Risala, was asked
about qiyas where he clearly explained the concept of qiyas. Particularly, to the question about
the difference between qiyas and ijtihad, he responded that there are several types of legal
rulings: (i) legal rulings from Qur’an and Sunnah, which make clear what is forbidden and
permitted; (ii) legal rulings of special character, which consists of Traditions, transmitted to the
limited number of scholars and only known to scholars, which are not compulsory to study; (iii)
legal rulings derived from ijma; (iv) ultimately, the legal rulings derived from ijtihad with the
help of qiyas. Then when he was asked about the different opinions between the scholars who
used qiyas in reaching the decisions, he responded that in the event, when considered case is like
the precedent in its initial meaning, then the discrepancy is not allowed.

Moreover, Islamic jurists have established the rules according to which the qiyas can be adopted:

a) qiyas should be used only then when the solution of specific issues is not found either in
Quran, or hadiths;
b) qiyas should not contradict the principles of Islam;
c) qiyas should not contradict the contents of Quran as well as the Traditions of Prophet;
d) it should be strict qiyas, based either on Quran, or hadiths, or ijma.

24
Syed Khalid Rashid, Muslim Law (Eastern Book Company, India, 6th edn. 2020).
25
Wegner, Judith Romney, "Islamic Talmudic jurisprudence; The Four Roots of Islamic Law and Their Tamudic
Counterparts", 26 The American Journal of Legal History, 44 (1982)

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 5. CONCLUSION

It may be concluded that the superstructure of Islamic Jurisprudence is founded on Quranic

verses and traditional utterance of Prophet, yet other sources have also helped a lot in developing
the sacred law mainly ijma and Qiyas. Since the Quran is believed to contain the literal words of
God, it is deemed the most authentic record of Islamic law, incarnating the final, inimitable and
infallible injunctions of everlasting validity. Sunnah is the teaching of the Prophet as reported to
us, also his personal conduct, and his tacit approval. Secondary sources have thus provided a
degree of flexibility to the development of law. In fact, although Islamic law owes its origins to
the primary sources, it has overwhelmingly flourished due to juridical activity, which was
particularly intense during the classical period of Islamic civilisation. The Muslim jurist, on the
other hand, must lay bare the will of God reflected in the Quran and credible traditions, rather
than proclaim the dictates of his own judgement. But this hardly prevented Muslim scholars from
expanding on positive law without being cramped in blind literalism, though they were much
more cautious about immutable principles. It is due to the contribution of all the sources of
Islamic law that an orderly and systematic theory of the personal laws of Islam came into
existence, which governs the Muslim community.

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6. BIBLIOGRAPHY

 Syed Khalid Rashid, Muslim Law (Eastern Book Company, India, 6th edn. 2020).
 Abdur Rahman, Muhammadan Jurisprudence: According to the Hanafi, Maliki, Shafi
and Hanbali schools, 44 (P.L.D. Publisher, Lahore, Pakistan)
 Israr A. Khan, Authentication of Hadith: Redefining the Criteria, 28 (International
Institute of Islamic Thought, London, 2010).
 Imran A. K. Nyazee, Theories of Islamic Law: The Methodology of Ijtihad, 195 ( The
Other Press, Islamabad, 1994).
 Majid Khadduri and Herbert J. Liebesny, Law in the Middle East, 34( The Lawbook
Exchange, New Jersey, 2008).
 Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, 18 (Islamic Texts
Society , Cambridge, 1989).
 Montgomery W. Watt, Islam and Christianity Today 125( Routledge, London, 1983).
 Bernard Lewis, The Political Language of Islam, 78. University of Chicago Press,
Chicago, (1988).
 R Landau, Islam and the Arabs (George Allen and Unwin Ltd, London, 1958).
 Joseph Schacht, An Introduction to Islamic Law, 11 (Oxford University Press, Oxford,
1982 ).
 Olivier Roy, Secularism Confronts Islam, 45 (Columbia University Press, New York,
2009).
 Abdullahi Ahmed An-Na’im, Toward an Islamic Reformation: Civil Liberties, Human
Rights, and International Law 27 (Syracuse University Press, Syracuse, 1996).
 Bernard Haykel, On the Nature of Salafi Thought and Action 43 (Columbia University
Press, New York,2009).
 Farooq A. Hassan, “The Sources of Islamic Law”, 76 American Society of International
Law 66 (1982).
 Wegner, Judith Romney, "Islamic and Talmudic Jurisprudence: The four Roots of
Islamic law and Their Talmudic Counterparts", 26 The American Journal of legal
History, 39 (1982).

11